IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FOURTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 2495 of 2008 Between: 1 Rajappa S/o Nagappa r/o Kachiguda, Hyderabad. 2 Madappa S/o Basvanappa r/o Miyapur, Hyderabad. 3 Shivananda S/o Chennappa R/o Katedan, Hyderabad. 4 Manohar S/o Viswanathappa r/o Afzalgunj, Hyderabad. .....PETITIONERS AND 1 K. Rama Kotaiah S/o Sriramulu repby his General Power of Attorney Holder B, ramakrishna Goud S/o Pochaiah aged 30 years R/o H. No. 17-1-388/P/63, Lakshminagar Colony, Saidabad, Hyderabad. 2 B. Ramakrishna goud S/o Pochaiah R/o H. No. 17-1-388/P/63, Lakshminagar Colony, Saidabad, Hyderabad. 3 Anjaneyulu S/o Not Known r/o 8-13-8-19/2, Kattedan, Hyderabad. 4 T. Prakash Goud S/o Gandiah r/o Mailrdevpally(V), Rajendranagar Mandal, Ranga Reddy Dsitrict. 5 N. Bheemaiah yadav, seethaiah r/o Mailrdevpally V), Rajendranagar Mandal, Ranga Reddy District 6 Madava Rao S/o Not known R/o Babulreddy Nagar kattedan Rajendranagar Mandal, Ranga Reddy District 7 Rama Rao S/o Not Known R/o Babulreddy Nagar Kattedan, Rajendranagar Mandal, Ranga Reddy District 8 The Registrar, Special Court under A.P., Land grabbing (Prohibition) act, 2nd Floor, BRKR Govt. Offices Complex, Tank Bund, road, Hyderabad. .....RESPONDENTS 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 issue a writ, order or direction especially one in the nature of writ of certiorari calling for the records relating to the order in LGC NO. 55 of 2004 on 17-1-2008 on the file of the Special Court under A.P. land Grabbing (Prohibition) Act, 982, at Hyderabad and quashthe same. Counsel for the Petitioners:MR.MASTHAN NAIDU CHERUKURI Counsel for the Respondent No.: . The Court made the following : THE HON’BLE Smt. JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE G. CHANDRAIAH W.P. No. 2495 of 2008 O R D E R: (Per THE HON’BLE Smt. JUSTICE T.MEENA KUMARI) This writ petition is filed against the order dated 17.1.2008 in L.G.C. No. 55 of 2004 on the file of Special Court under A.P. Land Grabbing (Prohibition) Act, 1982. The respondents 1 and 2 herein filed L.G.C. before the Special Court under Section 8(1) of the A.P. Land Grabbing (Prohibition) Act 1982 (for short, ‘the Act’) seeking to declare the respondents therein as land grabbers; to declare them as absolute owners of the application schedule land; to evict the respondents therein from the application schedule property; to award damages at the rate of Rs.10,000/- per annum from September, 2004 till eviction and for costs of the application. The Tribunal allowed the said L.G.C. declaring the respondents – petitioners herein and others as land grabbers and directed them to deliver possession of the application schedule land to the applicants therein within two months from the date of the judgment, failing which, the Special Court directed the RDO concerned to evict them from the schedule plot No. 184 within two months thereafter after expiry of the stipulated period of two months and directed to submit compliance report to it under Rule 15(2) of the Rules framed under the Act, with costs quantified at Rs.2000/-. Feeling aggrieved by the said orders, the petitioners herein filed the writ petition. The case of the respondents 1 and 2 herein before the Tribunal was that the 1st respondent herein purchased the application schedule land under a registered sale deed bearing document No. 794/1967 dated 26.4.1967 from one K. Sarveswara sarma and others; that the schedule land is part and parcel of a layout known as “Lal Bahadur Nagar Colony” to an extent of Ac.104.00 guntas in S.Nos. 160, 162, 163/1, 164 and 165/1, which was duly sanctioned by Mylardevpally Gram Panchayat; that from the date of purchase the 1st respondent herein is in possession and enjoyment of the schedule land; that the vendors of 1st respondent purchased the property under a registered sale deed dated 9.12.1966; that the 1st respondent entered into an agreement of sale with the 2nd respondent and executed a registered agreement of sale-cum-General Power of Attorney bearing document No.5224/2004 dated 21.6.2004; that the 2nd respondent was put in possession of the schedule land; that the petitioners came to the schedule land on 25.6.2004 and on 29.6.2004 along with a few prospective purchasers and offered the same for sale; that in spite of efforts to stop the petitioners herein, the petitioners made attempts to fix boundary stones around the schedule land; that the respondents 1 and 2 got filed O.S. 764/2004 on the file of the Court of Principal Junior Civil Judge, West & South, Rangareddy District for perpetual injunction; that in the said suit, an interim injunction was also sought; that the learned Principal Junior Civil Judge ordered notice in the interim injunction application; that taking advantage of the ordering of notice in the I.A., the petitioners grabbed the schedule land on 4.9.2004 and raised unauthorized structures thereon; that the petitioners have no manner of right, title or interest over the schedule land and that without any legal entitlement, the petitioners grabbed the property. It is stated by the petitioners that the 2nd petitioner herein, who is the 7th respondent in the main O.P., filed a detailed counter contending that the land grabbing case is not maintainable either in law or facts; that the respondents 1 and 2 must establish that they are the owners of plot No. 184 in S.Nos 160, 162, 163/1, 164 and 165/1 situated at Lal Bahadur Nagar Colony, Mailardevpalli village, Rajendra Nagar Mandal, Ranga Reddy District; that the vendor of the 1st respondent Sri K. Sarveswara Sarma and others appear to have sold the property to the 1st respondent herein in the year 1967 and notional possession appears to have been delivered as per the recitals in the sale deed; that all the plots were already converted into houses long back and there is no vacant site in existence as shown by the 1st respondent in the schedule of the application; that, therefore, there is no question of purchasing the schedule land by the 2nd respondent from the 1st respondent; that the agreement of sale entered into by the 1st respondent with the 2nd respondent is a false and created document for the purpose of this case; that the question of delivering possession of the site to the 2nd respondent does not arise as the 1st respondent is not in possession of the schedule land; that the petitioners never visited the schedule land with anti social elements; that the trial Court dismissed the injunction application in suit – O.S. No. 764 of 2004 on merits; that after the dismissal of the said application, the respondents 1 and 2 filed the L.G.C. with false allegations; that the 1st petitioner purchased an extent of 116 Sq. yards by a registered document bearing No. 2660/2002 dated 23.5.2002 from one Sri Rama Rao, an extent of 55.5 Sq. yards from one Sri M. Madhava Rao under a registered sale deed dated 26.2.2003 and also an extent of 111.11 Sq. yards in Plot No. 145 in S.Nos. 160, 162, 163/1, 164 and 165/1 of Mailardevpally village under a registered sale deed dated 9.6.2000; that the 1st petitioner herein constructed a house and the Municipality assigned door No.8-1-207/1/E/1; that the 1st petitioner is also paying taxes to the property; that there is no such open land available as per the boundaries given by the applicants in the schedule land; that a long time back, the entire land was sold by its owners and the petitioners and others purchased the said plots in small bits and constructed houses and residing therein; that the authorities have provided electrical service connections, municipal tap connections etc.; that the area is called “Bindavan Nagar Weaker Section Colony”. It is stated that the 2nd petitioner herein purchased an extent of 136 Sq. yards under a registered sale deed doc.No.2139 of 1998 dated 10.7.1998 from Dundappa Nagarajan and constructed a house of two rooms with asbestos sheet roof and has been residing in the said house since 1998 onwards. The Rajendra Nagar Municipality has allotted house No.8-1-207/1/E/3 and has been collecting taxes. The 3rd petitioner purchased an extent of 119 Sq. yards from Sri Gundappa Nagarajan under a registered sale deed dated 10.7.1998 (document No.2140/1998) and constructed a house of two rooms with asbestos sheet roof and residing in the said house since 1998. The Municipality has also allotted House No.8-1-207/1/E/5 and has been collecting taxes. It is further submitted that the 4th petitioner herein purchased an extent of 100 Sq yards from Sri Gundapa Nagarajan under the registered sale deed dated 10.7.1998 (document No.2142/1998) and has also constructed a house and has been residing therein since 1998. The Municipality has also allotted House No.8-1-207/1/E/4 and has been collecting taxes. The petitioners have filed copies of the registered sale deeds in favour of the petitioners to contend that they are not land grabbers. It is also stated by the petitioners that on behalf of 1st respondent, PWs 1 and 2 were examined and Exs.A-1 to A-9 were marked. On behalf of the petitioners herein, 1st petitioner was examined as RW-1 and Exs.B-1 to B-13 were marked. The Special Court, basing on the report of the M.R.O. allowed the application on 17.1.2008. It is contended by the learned counsel for the petitioners that the Special Court allowed the L.G.C. mainly relying on the report of M.R.O., which is not a conclusive proof as there was other evidence worth consideration and that the M.R.Os report is only for the purpose of taking cognizance of the case filed by the respondents 1 and 2 or at best to afford assistance in appreciating the other evidence on record and that it does not constitute substantive evidence. It is further contended that the M.R.O. conducted enquiry and submitted his report without issuing any notice to the petitioners and the Special Court failed to see that when the dispute is with regard to identification of plots, which is the principal question, the layout plan is a must, without which no just decision can be arrived at; that the order of the Special Court is vitiated by its delegating the judicial function of determining the issue of possession to the M.R.O. who in turn delegated it to the Mandal Revenue Inspector; that the report of the M.R.O. has no basis as to how the M.R.O. identified that the plot No.184 is in S.No.165 and that the copy of the M.R.O’s report was not furnished to the petitioners herein. It is further contended that the report of the M.R.O. was not even marked as an exhibit. It is also contended that Exs.A-1 and A-2 are not legally proved and therefore the question of executing a registered agreement of sale-cum-G.P.A. does not arise and thus PW-1 failed to adduce any legal evidence to substantiate his claim, but the Special Court failed to consider this important aspect. It is further contended that PW-1, who is the G.P.A., was not even born when the alleged sale transaction took place in favour of the petitioner therein i.e. in the year 1967, as such PW-1 had no personal knowledge about the transaction and therefore he was incompetent to speak of the transaction which had taken place prior to his taking birth. Thus, it is contended that the judgment of the Special Court is not based on proper appreciation of facts and therefore it is liable to be set aside. On the other hand, the learned counsel appearing for respondents 1 and 2 supported the judgment passed by the Special Court contending that the said judgment is passed considering the evidence available on record, both oral and documentary, elaborately and having found the petitioners herein and others as land grabbers, the Special Court rightly directed them to deliver possession of the applicant schedule land to respondents 1 and 2 herein and such judgment passed by the Special Court, which is based on the merits of the case, may not be interfered with. In the light of the rival contentions of the learned counsel for the parties, we have carefully gone through the entire material available on record including the order passed by the Special Court. A perusal of the same discloses that the 2nd respondent is the General Power of Attorney of the 1st respondent and he being the G.P.A. of 1st respondent has deposed of the sale transaction which took place in favour of 1st respondent herein in the year 1967. In this context, it is pertinent to refer to a decision of the Supreme Court in Janki Vashdeo Bhojwani v. Indusing Bank Ltd.[1] wherein it is held as follows: “Order 3 Rules 1 and 2 empowers the holder of power of attorney to ‘act’ on behalf of the principal. The word ‘acts’ employed in O.3 Rules 1 and 2, confines only in respect of ‘acts’ done by the power granted by the instrument. The term ‘acts’ would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some ‘acts’ in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined”. In view of the above, it has to be observed that the 2nd respondent had not even born as on the date of the alleged sale transaction which had taken place in the year 1967. Exs.A-1 and A-2 relate to the year 1966 and 1967 respectively and by the date of deposing as a witness before the Special Court he might be around 26 years whereas the documents Exs.A-1 and A-2 were of 38 and 37 years old respectively and therefore he must not be having knowledge to depose of Exs.A-1 and A-2. In view of the decision of the Supreme Court cited above, we observe that the 2nd respondent cannot depose of the alleged sale transaction by the 1st respondent in the years 1966 and 1967 as he had not even born by the date of execution of Exs.A-1 and A-2 and that the Special Court has failed to consider this aspect. A perusal of the order passed by the Special Court further discloses that it has mainly relied on the report of the M.R.O. in arriving at the conclusions. It has to be seen that the said M.R.O. on whose report the Special Court has placed heavy reliance is not examined and the report of the M.R.O. was not even marked. In the absence of non-examination of M.R.O. who has given report coupled with the fact that the report of the M.R.O. was not even marked, we are of the considered opinion that the Special Court erred in placing reliance on the report of the M.R.O., more particularly, in the light of the contention of the petitioners that the M.R.O. conducted enquiry and submitted his report without any notice to the petitioners. In the facts and circumstances of the case, the irregularities committed by the Special Court cannot be said to be technical irregularities as contended by the learned counsel for respondents 1 and 2. For the above reasons, we are of the considered opinion that the judgment passed by the Special Court under A.P. Land Grabbing (Prohibition) Act is liable to be set aside and it is accordingly aside and the writ petition is allowed. T. MEENA KUMARI, J. G. CHANDRAIAH, J. Date: 24-04-2008. MVB. [1] AIR 2005 SC 439