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2020 DIGILAW 644 (TS)

Collector v. A. l. Srinivas

2020-08-26

M.S.RAMACHANDRA RAO

body2020
JUDGMENT M.S. Ramachandra Rao, J. - This Revision is filed under Article 227 of the Constitution of India challenging the order dt.07.03.2018 in CMA.No.7 of 2018 of the XXVII Additional Chief Judge, City Civil Court, Secunderabad. 2. Petitioners herein are defendants 1 to 3 in OS.No.599 of 2017 on the file of the XI Junior Civil Judge, City Civil Court, Secunderabad. 3. The 1st respondent herein had filed the said suit against the petitioners seeking a perpetual injunction restraining them from interfering or dispossessing him from the suit schedule property and also sought for dispensing with notice under Section 80 of CPC. 4. In the suit, the 1st respondent contended that his grandfather was allotted the suit schedule property on lease in 1956 by the Telangana Housing Board (2nd respondent); that the Government later issued G.O.Ms.No.32 Housing dt.19.06.1990 permitting the 2nd respondent to sell the property under hire purchase scheme and the 2nd respondent had received the entire amount from the 1st respondents grandfather and the 1st respondent, but the 2nd respondent had not transferred the property to him. He alleged that he and his grandfather had been in continuous uninterrupted possession of the suit schedule property for more than 60 years; that the earlier structure was demolished by the 1st respondent and he had erected mulgies, which were allotted new municipal No.10-1-130 and that he was doing business therein; that the Government of Telangana issued G.O.Ms.No.58 dt.30.12.2014 offering pattas to people in possession of property for long time; that the 1st respondent had also applied for such patta, but petitioners did not take any steps; that the petitioners, without following due process of law, have demolished some houses in the locality; that they also came to the 1st respondent on 23.11.2017 and threatened to dispossess the 1st respondent and also demolish the structures erected by him. He therefore pleaded urgency for dispensing with the notice under Section 80 of the CPC and sought perpetual injunction restraining the petitioners from interfering with his possession and enjoyment or dispossessing him from the suit schedule property. 5. Along with the suit, he filed IA.No.490 of 2017 seeking temporary injunction restraining the petitioners from interfering from demolishing the suit schedule property till the disposal of the suit. 6. Counter affidavit was filed by the petitioners opposing grant of interim relief to the 1st respondent in IA.No.490 of 2017. 7. 5. Along with the suit, he filed IA.No.490 of 2017 seeking temporary injunction restraining the petitioners from interfering from demolishing the suit schedule property till the disposal of the suit. 6. Counter affidavit was filed by the petitioners opposing grant of interim relief to the 1st respondent in IA.No.490 of 2017. 7. It is alleged by the petitioners that the State of Telangana took decision to provide double bed room houses for poor people of the State who live in urban and rural areas free of cost; that the suit schedule property is situated in a slum by name Old Marredpally Slum in survey No.s 62 and 63 of Marredpally village and Mandal; that this area was also identified for the provision of double bed room houses by the petitioners 3 and 4; that a Bastisabha was conducted on 14.10.2017 and 425 beneficiaries were identified for allotment of double bed room houses; and that the 1st respondent was also one of the persons found eligible in the said allotment. 8. It was contended that construction of double bed room houses can be taken up only by the housing department after handing over of vacant possession duly demolishing the existing structures of the slum and as such demolition was taken up on 11.11.2017 by the GHMC and the Housing Department. 9. It is contended that the 1st respondent admitted the suit schedule property to be the Government property by applying for issuance of patta under G.O.Ms.No.58 dt.30.12.2004; that it is not the intention of the petitioners to demolish the existing houses; and that the action taken for demolition of existing houses in the slum is only for taking up the construction of double bed room scheme and so the interim application be rejected. 10. By order dt.19.01.2018, the trial Court dismissed IA.No.490 of 2017. It referred to Ex.R2, attested copy of the Consent form the 1st respondent said to have been signed and held that since the 1st respondent had already consented and expressed his willingness for such allotment, though he is denying the same, he is not entitled to any interim relief. 11. Assailing the same, the respondents filed CMA.No.7 of 2018 before the XXVII Additional Chief Judge, City Civil Court, Hyderabad. 12. 11. Assailing the same, the respondents filed CMA.No.7 of 2018 before the XXVII Additional Chief Judge, City Civil Court, Hyderabad. 12. The said CMA was allowed on 07.03.2018 by the lower Appellate Court and the order dt.19.01.2018 in IA.No.490 of 2017 was set aside and the said IA was allowed. The lower appellate court noted that the petitioners did not deny the possession of the 1st respondents and the fact that the 1st respondent was also considered for allotment of a double bed room house in the proposed double bed room scheme taken up by the State of Telangana. 13. It held that the 1st respondent being in settled possession, can only be dispossessed by following due process of law; that if the 1st respondent is evicted by force, he would have no shelter and he would be on the road and therefore prima facie case and balance of convenience are in his favour. 14. It observed that by taking plea of construction of double bed room houses, the 1st respondent cannot be evicted by force and even if he is considered for allotment of double bed room scheme, the ends of justice would not be met if he is thrown out from his settled possession. 15. Assailing the same, this Revision is filed. 16. Heard the Government Pleader for Arbitration appearing for the petitioners. He contended that the suit schedule property is located in a slum area and the 1st respondent had already given consent by stating that he was willing for getting a house in the two bed room house scheme and therefore he cannot be said to be entitled to any interim relief in the suit. He also contended that the approach of the lower Appellate Court is erroneous and this Court ought to interfere with the order passed by the said Court. The consideration by the Court 17. In the counter affidavit filed by the petitioners in IA.No.490 of 2017, the petitioners had specifically stated in para 11 that they had no intention to demolish respondent s existing house. 18. There is no reference in the counter affidavit to any consent letter said to have been given by the 1st respondent agreeing to vacate his property and willing for taking the double bed room house being offered by the petitioner. 19. 18. There is no reference in the counter affidavit to any consent letter said to have been given by the 1st respondent agreeing to vacate his property and willing for taking the double bed room house being offered by the petitioner. 19. In para 9 it is merely stated that 1st respondent was identified as eligible for allotment of one double bed room flat and that he was also issued an allotment proceeding. 20. Without any pleading that the 1st respondent had given consent that he would voluntarily vacate the suit schedule property in his occupation, it is not open to the petitioners to rely on Ex.R2 said to be the consent letter given by the 1st respondent. 21. That apart, if the petitioners dispossess the 1st respondent from the suit schedule property at this juncture, the 1st respondent would have nowhere to go till the 2BHK house programme is completed and he is given a flat under the said scheme and this would certainly cause serious prejudice to the 1st respondent. The petitioners cannot expect the 1st respondent to live on the street till the 2BHK house programme is completed and his flat is allotted. 22. Nowhere, in the trial Court or in the First Appellate Court, have the petitioners offered to give the 1st respondent some alternative temporary accommodation so that they can remove the structures erected by him and demolish the said structure for building the 2BHK houses in that area. 23. It may be that the right to property is no longer a fundamental right but it is still a constitutional right and a legal right, and the possession of the 1st respondent over the suit schedule property is undisputed. 24. Having said in para 11 of their counter filed in IA.No.490 of 2017 that the petitioners have no intention to demolish the existing house, in the same breadth the petitioners say in para 12 that the action taken for demolition of the existing houses in the slum was neither a threat nor high handedness of the petitioners. Both these sentences are contradicting with each other. 25. Both these sentences are contradicting with each other. 25. In my considered opinion, the trial Court had omitted to look at the above circumstances while dismissing the IA.No.490 of 2017, but the lower Appellate Court had rightly taken into account the legal principle that a person in peaceful possession is entitled to retain his possession and he cannot be dispossessed by the State by using unreasonable force, by following the judgments in Rame Gowda (died) by Lrs. v. M.Varadappa Naidu (died) by Lrs and another, (2004) AIR SC 4609 Prataprai N.Kothari v. John Braganza, (1999) AIR SC 1666 V.Muralidhar v. S.Anaiah Goud and another, (2007) AIR A.P. 347 and Mohd.Ashrar Ahmed Shareef and another v. State of AP and another, (2009) 6 ALD 1 . It has rightly held that if the 1st respondent is now evicted by force he would have no alternative shelter and he would be thrown on the roads. 26. Therefore, I do not find any error of jurisdiction in the order passed by the lower Appellate Court warranting interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. 27. Accordingly, this Civil Revision Petition fails and it is dismissed at the admission stage. However, the trial Court shall decide the suit uninfluenced by any observations made by it in IA.No.490 of 2017 or of lower Appellate Court in CMA No.7 of 2018 or of this Court in this order. No order as to costs. 28. Consequently, miscellaneous petitions, pending if any, shall stand closed.