Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 1101 (AP)

M. Yadagiri Reddy v. V. C. Brahmanna

2008-12-24

S.ASHOK KUMAR, V.ESWARAIAH

body2008
ORDER (Per V.Eswaraiah, J.) Heard Sri Challa Seetharamaiah, learned senior Counsel, appearing for the writ petitioner and the learned counsel, appearing for the respondent. 2. The writ petitioner IS the respondent in L.G.C.No.48/2002 on the file of the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982, Hyderabad (hereinafter referred to as "the Special Court"). The respondent is the applicant in the said LGC. The petitioner questions the order of the Special Court dated 13.08.2008, where under the warrant was re-entrusted to the Advocate Commissioner with a direction to localize Ac. 12.00 of land fixing the Eastern boundary as road shown by the respondent which is found in the village map and to find out the boundaries on North, South and West and note down whether they are tallied with the boundaries mentioned in the application schedule land or not and to note down the names of land owners with survey numbers and sub-divisions, if available, on the North, West and South sides separately and to localize the land claimed by the applicant and the respondent as per their title deeds with the assistance of K.S. Reddy now working as Dy. Inspector of Survey, East Division, Ranga Reddy District, who had assisted the commissioner on earlier occasion and take measurements as per work memos filed by both parties. The petitioner also questions the consequential order dated 02.09.2008 passed in IA920/2008 in LGC.48/2002, which is filed for amendment of warrant dated 13.08.2008 and where under the Special Court directed the Advocate-Commissioner to issue notice to Sri Mohd. Irshad Ahmed. Forest Beat Officer, Hyderabad and Sri T.V. Subbarao, Member, Vijayapurl East Colony to find out the boundaries and names of owners of the land on South, East and West of the land surveyed by the Advocate-Commissioner on 24.12.2007. 3. The parties herein are referred to as arrayed In the LGC.48/2002 for the sake of convenience. 4. The applicant filed LGC.48/2002 vide application dated 14.08.2002 under Sub-Section (1) of Sec.8 of A.P. Land Grabbing (Prohibition) Act, 1982 (hereinafter referred to as "the Act") alleging that he is the owner and possessor of an extent of AC.12.00 of land in Sy.Nos.33/6 to 33/10 situated at Chengicherla village and Gram Panchayat, Ghatkesar MandaI. Ranga Reddy District. 4. The applicant filed LGC.48/2002 vide application dated 14.08.2002 under Sub-Section (1) of Sec.8 of A.P. Land Grabbing (Prohibition) Act, 1982 (hereinafter referred to as "the Act") alleging that he is the owner and possessor of an extent of AC.12.00 of land in Sy.Nos.33/6 to 33/10 situated at Chengicherla village and Gram Panchayat, Ghatkesar MandaI. Ranga Reddy District. The applicant purchased the said land vide registered sale deed dated 21.05.1969 from Ponnapu Chandraiah and others, bounded by East - 30' road, West - land of B. Saraswati and others, North - boundaries of Cherlapalli village limits and South Vendor's land in Sy.No.33/1 0 to 33/6. There is no change of boundaries in the application schedule except the change of the name of the owner towards South namely T.L.P. Charities and the land of T. Harsha, which belong to the Vendor of the applicant. It is stated that the applicant had fenced on three sides with barbed fencing with khadi stones soon after purchase of the said land and all the three sides except southern side for convenience of development in due course. While so, the respondent removed the portion of barbed wire on or about 10.02.2002 without having any right, title or claim and grabbed the land on or about 03.08.2002 preventing the applicant's Manager from proceeding with clearing of shrubs. It is stated that the respondent without having any right or title claiming the land of an extent of Act.7.01 gts. in Sy.No.33/10 and AC.13.12 gts. in Sy.No.33/11 based on some ROR proceedings dated 06.04.2000 which are said to have been fraudulently obtained without there being any title to the said property. It is stated that the ROR proceedings, title deed and pattadar passbooks have been obtained wlthoot there being any title in favour of the respondent in proof of purchase of the same. Therefore, the applicant sought for eviction of the respondent from the application schedule land. 5. It is the case of the respondent that he is the owner and pattadar of Ac.20.13 190 gts. situated in Sy.Nos.33/10 and 33/11 of Chengicherla village bounded by. North APIIC Cherlapally and Road, South - Land of Ramalah and Pasula Pentalah, East Land of T.L.P. Charities and West - Land belongs to Aravinda Colony. 5. It is the case of the respondent that he is the owner and pattadar of Ac.20.13 190 gts. situated in Sy.Nos.33/10 and 33/11 of Chengicherla village bounded by. North APIIC Cherlapally and Road, South - Land of Ramalah and Pasula Pentalah, East Land of T.L.P. Charities and West - Land belongs to Aravinda Colony. Pattadar passbook and title deeds have also been issued in his favour and therefore, the land of the applicant is different and distinct from that of the respondent and the land of the applicant is separate piece of land with specific boundaries and the exact location of the application schedule land has to be determined through the survey demarcation only. 6. The Special Court by judgment dated 14.07.2004 allowed the LGC.48/2002, directing the writ petitioner herein to vacate the application schedule property and deliver vacant possession of the same to the applicant. Aggrieved by the same, the writ petitioner herein filed W.P.19030/2004 and the Division Bench of this Court by judgment dated 03.12.2004 allowed the said writ petition, observing that the writ petitioner herein does not dispute the title of the applicant in respect of the land purchased by him under the registered sale deed dated 21.05.1969 from P.Chandraiah and five others, situated in Sy.Nos.33/6 to 33/10, admeasuring Ac.12.00 and the title is traceable in favour of the vendor's vendor of the applicant from 1957 onwards. Whereas the writ petitioner claims that he is the owner of an extent of Ac.20.13 gts in Sy.Nos.33/10 and 33/11 and as the extent of the land in respect of each of the Sy.Nos.33/6 to 33/10 was not demarcated survey number-wise and the applicant has not claimed any property of the writ petitioner in Sy.No.33/11, and the survey report submitted by the Mandai Revenue Officer in respect of Sy.No.33/10 is Ac.13.34 gts. and the land of the applicant, admeasuring Ac.12.00 in Sy.Nos.33/6 to 33/10 is unidentifiable and the report of the Mandai Revenue Officer has been subjected to some criticism by the Special Court, and also as the writ petitioner never disputed with regard to right and title of the applicant over an extent of AC.12.00 located in Sy.No.33/6 to 33/10 and at the same time the applicant also not claiming any property in respect of Sy.No.33/11, it was held that the Special Court has committed an error in arriving at a conclusion to hold that the writ petitioner is to be a land grabber, without any supporting evidence. Accordingly, while setting aside the judgment of the Special Court, this Court held that the writ petitioner herein is not entitled to claim any portion of the land of the applicant in Sy.Nos.33/6 to 33/10, admeasuring Ac.12.00. 7. This Court also observed that the applicant also not claiming the land of the writ petitioner of an extent of AC.20.13 gts. in Sy.Nos.30/10/AA and 33/11A of Changicherla village, Ghatkesar Mandai, Ranga Reddy District. As the earlier application filed by the writ petitioner in 1.A.625/2004 Under Order 26, Rule 9 of CPC for appointment of an Advocate Commissioner with the assistance of a Surveyor for local inspection to elucidate the facts of physical features of the land owned by the applicant for just decision of the case, has been dismissed after pronouncement of the judgment in the main case, the said application was allowed. The Special Court is directed to appoint an Advocate-Commissioner duly assisted by a qualified Surveyor for local inspection to elicit the facts of physical features of the application schedule land as well as the land admeasuring Ac.20.13 gts. in Sy.Nos.33/10/AA and 33/11A situated at Chengicherla village of Ghatkeshar Mandai, Ranga Reddy District. The Commissioner was directed to submit the report to the Special Court, which shall be taken into consideration by the Special Court for determining the issues that arise for consideration and dispose of the LGC accordingly. 8. Pursuant to the said judgment of this Court, the Special Court, by order dated 02.02.2005, appointed Mr. The Commissioner was directed to submit the report to the Special Court, which shall be taken into consideration by the Special Court for determining the issues that arise for consideration and dispose of the LGC accordingly. 8. Pursuant to the said judgment of this Court, the Special Court, by order dated 02.02.2005, appointed Mr. T.M.N. Rangarao, as Advocate-Commissioner duly assisted by a qualified surveyor for local inspection to elicit the factum of physical features of the application schedule land as well as the land of the writ petitioner situated at Chengicherla village, having regard to the boundaries given by both the parties with the help of a qualified surveyor of Ghatkesar Mandai, Ranga Reddy District. The Advocate-Commissioner and the Surveyor inspected the lands in the presence of both the parties and submitted a report dated 09.10.2006 into the Court on 10.10.2006. It is stated that the Commissioner report was filed along with plans showing that the writ petitioner encroached about AC.5.03 gts. of the land of the applicant. Aggrieved by the said report, the writ petitioner filed objections contending that the entire survey and demarcation was done at the dictation of the applicant and the work memo filed by the writ petitioner has not been considered. The applicant also filed objections for the said report. 9. It is the case of the applicant that as the Advocate-Commissioner clearly shown the encroachment of AC.5.03 gts in the land of the applicant and to wriggle out of the situation, the writ petitioner produced some village maps to say that 30’ road shown as eastern boundary in the sale deed and in the application schedule is not the one shown by the applicant and noted by the Commissioner is far away and the Commissioner did not notice the same in the plan. 10. When the matter was posted for arguments, the writ petitioner filed I.A.133/2007 to reopen the case and also filed I.A.134/2007 to examine the Commissioner. Both the petitioners were allowed and the Commissioner was examined as CW 1 and Exs.C6 to C8 were marked. Applicant filed I.A.491/2007 to reopen the case and also filed I.A.492/2007 to summon the Mandai Surveyor. Both the applications were allowed and the Mandai Surveyor was examined as CW 2 and marked Exs.C-7A to C-7D. Both the petitioners were allowed and the Commissioner was examined as CW 1 and Exs.C6 to C8 were marked. Applicant filed I.A.491/2007 to reopen the case and also filed I.A.492/2007 to summon the Mandai Surveyor. Both the applications were allowed and the Mandai Surveyor was examined as CW 2 and marked Exs.C-7A to C-7D. Thereafter, the writ petitioner argued for rejection of the commissioner's report and for appointment of a new Commissioner for localization of the application schedule land with the help of the material furnished by the applicant. The Special Court by order dated 23.10.2007 held that the Advocate-Commissioner located the applicant's land and the writ petitioner's land with the assistance of the Surveyor as shown by the respective parties and hence the report need not be rejected, but some more details are required in view of contentions raised by the writ petitioner to come to a just conclusion. Accordingly, the warrant was re-entrusted to the Commissioner to localize AC.12.00 of the land fixing the eastern boundary as the road shown by the writ petitioner which is found in the village map and to find out the boundaries on North, South and West and to note whether they tallied with the boundaries mentioned in the application schedule land or not. The Special Court also directed to note down the names of the land owners with survey numbers and subdivisions, if available, on the North, West and South sides separately. 11. Sri M.P. Chandramouli, learned Counsel, appearing for the applicant contended that as the Advocate Commissioner declined to execute the warrant in view of the attitude of the writ petitioner, the warrant was entrusted to another Advocate-Commissioner. During course of execution of warrant, he, being counsel for the applicant, gave work memos and specifically requested the Commissioner to note down the names of the neigh bouring owners in and around the application schedule land and also the distance between the original 30' eastern road and the road now shown by the writ petitioner. The Commissioner, without complying with any of the directions, filed perfunctory report, for which the applicant filed objections stating that the report is not in conformity with the warrant and hence it may be re-entrusted. The Advocate-Commissioner was examined as CW 3 in part and the Forest Beat Officer as CW 4. The Commissioner, without complying with any of the directions, filed perfunctory report, for which the applicant filed objections stating that the report is not in conformity with the warrant and hence it may be re-entrusted. The Advocate-Commissioner was examined as CW 3 in part and the Forest Beat Officer as CW 4. During their examination, the writ petitioner realized that the second report is no way buttressed his case. As the contents of the report is not in conformity with the warrant, it will not affect the earlier warrant and therefore, the Special Court has re-entrusted the warrant on the request of the writ petitioner which is evident from the fact that the writ petitioner himself was directed to pay the Commissioner's fees. 12. Sri Challa Seetaramaiah, learned senior counsel, appearing for the writ petitioner submits that the Commissioner's Report dated 09.10.2006 was set aside and re-entrusted to another Advocate Commissioner by order dated 23.10.2007, but it was not at the instance of the writ petitioner. But, however, after re-entrustment, the Advocate-Commissioner made local inspection and filed a report on 31.01.2008 and it is in conformity with the order of the Special Court dated 23.10.2007 and the land of the writ petitioner is far away from the land of the applicant. Therefore, the impugned orders are bad in law and are liable to be set aside. 13. On the other hand, the learned counsel, appearing for the respondent/applicant submits that the applicant filed application to put the owners of the land on notice of inspection. Without their presence and permission the Commissioner cannot enter their lands. However, the re-entrustment was at the instance of the writ petitioner alone by the order of the Special Court dated 23.10.2007 and in fact, the earlier report was not at all set aside. 14. We have perused the order dated 23.10.2007. Without their presence and permission the Commissioner cannot enter their lands. However, the re-entrustment was at the instance of the writ petitioner alone by the order of the Special Court dated 23.10.2007 and in fact, the earlier report was not at all set aside. 14. We have perused the order dated 23.10.2007. The Special Court while coming to conclusion that it is just and proper to reentrust the warrant to the Advocate Commissioner and as per the directions and observations of this Court in the said writ petition No.19030/2004, the lands of both parties ought to be licalised with reference to the survey numbers and also with reference to the boundaries, and to appreciate the contentions of both parties and to come to a conclusion, it is necessary to find out the measurements between the eastern road shown by the applicant and the eastern road shown by the respondent as found in the village map, which according to the writ petitioner, it is the eastern boundary of the application schedule land. The Surveyor simply measured the land shown by the applicant and prepared Ex.C-7(B) plan. Similarly, he simply measured the land shown by the respondent and prepared Ex.C-7(C) plan. Both the lands are shown as part of Sy.No.33. But no subdivisions are mentioned. As there is no record showing sub-division, the Commissioner directed the surveyor to take measurements of the land shown by the applicant and the land shown by the writ petitioner and hence the report of the Commissioner need not be rejected. 15. In the absence of sub-division survey record, some more details are required in view of the contentions raised by the writ petitioner and the applicant to come to a just conclusion. The Commissioner was required to localize AC.12.00 of the land fixing the eastern boundary as the road shown by the writ petitioner which is found in the village map and to find out the boundaries on North, South and West and state whether they are tallied with the boundaries mentioned in the application schedule land or not. The Commissioner also required to localize the said extent of AC.12.00 fixing the eastern boundary as the road shown by the writ petitioner and to note down the names of the land owners with survey numbers and sub-divisions, if available, on the North, West and South sides separately. The Commissioner also required to localize the said extent of AC.12.00 fixing the eastern boundary as the road shown by the writ petitioner and to note down the names of the land owners with survey numbers and sub-divisions, if available, on the North, West and South sides separately. The land claimed by the applicant and the respondent is required to be localized as per their title documents. Accordingly, the warrant was re-entrusted to the Advocate-Commissioner Sri T.N.M. Rangarao, giving liberty to both parties to file work memos before the Advocate-Commissioner and the Advocate Commissioner was directed to give notice to both the parties and their respective counsel before execution of commission of warrant with the assistance of the Mandai Surveyor. As the commission of warrant is re-entrusted pursuant to the objections raised by the writ petitioner, the writ petitioner was directed to pay Rs.30,000/- to the Advocate Commissioner towards his fee. 16. During course of enquiry, the report of the second Advocate-Commissioner dated 31.01.2008 was examined and as the said report is found incomplete and not in accordance with the warrant issued by the Court, the Special Court, by order dated 13.08.2008, re-entrusted the warrant to the Advocate-Commissioner, as directed in the earlier warrant dated 02.01.2008. Accordingly, issued the warrant dated 13.08.2008 which reads as follows: Warrant 01.13.8.2008 You should localize 12 acres of land fixing the eastern boundary as road showing by the respondent which is found in the village map and to find out the boundaries on north, South and west an state note the names of land owners with survey numbers and sub divisions (if available) on the North, West and South sides separately. U are hereby appointed as Commissioner for the above said purpose. U are directed to localize the land and take measurements as per work memos files by both the parties and the land claimed by the application and the respondent as per their title deeds with the assistance of K.S. Reddy now working as Dy. Inspector of Survey, East Division. Ranga Reddy District, who had assist8d the Commissioner on earlier occasion. You are hereby directed to take appropriate action regarding photographs etc., on filing the work memos by the petitioner as well as respondent and also consider the requests made in the work memos. Your fee is Rs.30,000/- payable to you directed by the respondent. Inspector of Survey, East Division. Ranga Reddy District, who had assist8d the Commissioner on earlier occasion. You are hereby directed to take appropriate action regarding photographs etc., on filing the work memos by the petitioner as well as respondent and also consider the requests made in the work memos. Your fee is Rs.30,000/- payable to you directed by the respondent. You should return the warrant along with report together with plans etc., in triplicate to this Court on or before 1.9.2008" 17. As the Advocate-Commissioner failed to note down the names of the neigh bouring " plot owners who were present at the time of execution of the warrant and as the presence of the Forest Officer and Sri T.V. Subbarao was not disputed, the applicant filed an application for amendment of the warrant dated 13.08.2008 to direct the Advocate- Commissioner to issue notice to Sri Mohd. lrshad Ahmed, Forest Beat Officer and Sri T.V. Subbarao, Member, Vijayapuri East Colony to find out the boundaries of the neigh bouring plot owners, for which the writ petitioner herein filed counter, stating that the Forest Officer has already examined as CW 4 and his presence is not necessary when the Commissioner executing the warrant. However. it was admitted that the Forest Officer and Sri T. Subbarao, Member of Vijayapuri East Colony were present when the Commissioner visited the application schedule property. The warrant is re-entrusted to the Commission''' for the reason that the names of the neigh bouring plot owners are not mentioned in his report. Accordingly, the application is allowed and the Advocate Commissioner is directed to issue notices to the Forest Officer and Sri T.V. Subbarao by the consequential impugned order dated 02.09.2008. 18. In view of the aforesaid rival contentions of the respective parties, we are unable to understand as to how the said impugned orders are illegal and unsustainable as it IS the legal requirement to find out the truth or otherwise of the allegations made by the applicant, more so when he is the undisputed owner of AC.12.00 of land in Sy.Nos33/6 to 33/10 of Chengicherla village to find out whether the writ petitioner/respondent grabbed or encroached the said land in any manner. The scope and ambit of the earlier order is specific and clear to find out the applicant's land with reference to his boundaries. location, so also the land of the writ petitioner. The scope and ambit of the earlier order is specific and clear to find out the applicant's land with reference to his boundaries. location, so also the land of the writ petitioner. In so far as the land in Sy.No.33/11 is concerned, there is no claim over the said property by the applicant. It is the specific case of the applicant that he is the exclusive owner, having legal right and title over an extent of AC.12.00 of land in Sy.No.33/6 to 33/10 and the respondent/writ petitioner has no claim, right or title over the land claimed by the applicant, and if that be so, any portion of the land if found in possession of the respondent/writ petitioner in respect of Sy.No.33/10 claimed by the applicant of an extent of Ac.12.00, the applicant is entitled to recover the said land which is said to have been grabbed by the writ petitioner. 19. In so far as the land of the applicant in Sy.No.33/10 is concerned, as it is alleged that the writ petitioner/respondent grabbed the land of the petitioner without having any right or title over the said property and in fact the writ petitioner/respondent also is not disputing the right, title and interest over the application schedule property in favour of the applicant, it is required to be considered incidentally to go into the title claimed by the writ petitioner/respondent, if any set up by the writ petitioner in respect of Sy.No.33/10. 20. In the case of Kandala Lakshmana Bapuji v. Govt. of A.P.1 in relation to the disputes under the Act, the Apex Court held that all the questions concerning the civil nature of the dispute are to be decided by the Special Court set up by the Act and the Civil Court has no jurisdiction. In view of the statutory provisions defined in Sec.2(e) and Sec.2(d) of the Act relating to the definition of "Land Grabbing" and "Land Grabber" respectively, and as the claim of the applicant that he is the owner of the application schedule property and that his land was grabbed by the writ petitioner, the initial burden rests on him to prove his right and title to the property and if once the same is discharged by the applicant, the burden shifts on the respondent. In the instant case, there is no dispute at all with regard to the right, title and ownership of the application schedule property in favour of the applicant and therefore the burden shifts on the writ petitioner that he has not grabbed or encroached any part of the land claimed by the applicant including the land in Sy.No.33/10. 21. The Division Bench of this Court in the case of Jannalagadda Samrajyam v. Registrar, the Special Court2 considering the provisions of the Act and various judgments of the Apex Court, held that the Special Court is competent to try and determine the issue of title, right to or possession of the land alleged to have been grabbed. The jurisdiction of the Special Court is attracted when once it is discernible from the application that there has been an act of land grabbing committed by the respondent therein. When once the jurisdiction of the Special Court is attracted, the question as regards the title, right to, or possession of that land shall have to be decided only by it. Visualizing a situation wherein the wake of an allegation of committing an act of land grabbing, which attracts the jurisdiction of the Special Court and if the issue of title over such land shall have to be determined only by the Civil Court, a party shall have to approach the Special Court in respect of a part of the cause of action and the Civil Court in respect of the other part. A party cannot be driven to approach the Special Court as well as the Civil Court simultaneously when he complains of grabbing of his land. Accordingly, it was held that the Special Court is competent to try and determine the issue of title over the land and also equally competent to determine the question when there is a plea of title by means of prescription. 22. The land grabbing case, filed in the year 2002, could not be disposed of even after lapse of six years for some or other reasons and mainly attributable to the writ petitioner. We are of the opinion that the impugned orders do not suffer from any illegalities or infirmities and they are in conformity with the earlier order of the warrants, re-entrusting to the Advocate-Commissioner to note down the particulars of the neighbours. We are of the opinion that the impugned orders do not suffer from any illegalities or infirmities and they are in conformity with the earlier order of the warrants, re-entrusting to the Advocate-Commissioner to note down the particulars of the neighbours. We also do not see any justification on the part of the writ petitioner to question the said orders in any manner. There are no merits in the writ petition and the writ petition is frivolous, del/aid of any merits and liable to be dismissed with exemplary costs. 23. The Writ Petition is, accordingly, dismissed with costs of Rs.15.000/- (Rupees fifteen thousand only).