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Kalva Suryanarayana and ors. Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 6111 of 1973
Judge
Reported inAIR1976AP165
ActsConstitution of India - Article 226
AppellantKalva Suryanarayana and ors.
RespondentThe State of Andhra Pradesh and ors.
Appellant AdvocateP. Babul Reddy, Adv.
Respondent AdvocateG.V.L. Narasimha Rao, Adv. and ;C. Ananda Rao, Adv. General
Excerpt:
.....directions against respondents not to interfere with ownership and possession of petitioner's land - title of such property disputed - disputed rights cannot be enforced under article 226 - no directions can be issued in favour of petitioners. - - sri dandoo pentaiah is stated to have failed to pay the rents also for the past 5 years. the nizam of hyderabad in mushirabad village for industrial trust fund and the respondents were having both the title as well as the possession. appropriate writs can be issued by the high court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the high court under article 226 is not confined to cases of illegal invasion of his..........obtained an allotment of ac. 0.99 cents bearing plot no. 6 which was adjacent to the plot of the land the petitioners purchased. the industrial trust fund, acting on behalf of the government allotted that land under an agreement dated 6th september, 1951. sri dandu pentaiah applied for allotment of that land stating that if that land was allotted it will form a compact block together with their own land, so that an industry could be started in that area as the same is situated in an industrial area. the petitioners further submit that they have been paying the cists continuously ever since they have purchased the land in question. 4. the andhra pradesh state road transport corporation intended to purchase the land in question and there was some correspondence between the petitioners.....
Judgment:
ORDER

1. This is an application filed under Article 226 of the Constitution of India for the issuance of an appropriate writ directing the State of Andhra Pradesh, the 1st respondent, the Director of Industries, the 2nd respondent and the Andhra Pradesh State Road Transport Corporation, the 3rd respondent forbearing them from interfering with the ownership and possession of the petitioners of the lands situated in Survey Nos. 65 and 66, Amberpet Sarf-E-Khas, now called Azamabad Industrial Area, Hyderabad.

2. The case of the petitioners is that they are the owners of a plot comprising an extent of 25,000 sq. yards situated in Survey Nos. 65 and 66 Amberpet Sarf-E-Khas, Hyderabad. They purchased the same under a registered sale deed from one by name K. Nagayya, in 1355 Fasli. The vendor under the said sale deed Sri K. Nagayya purchased the same under a registered sale deed in 1350 Fasli. The petitioners' case is that they have been in possession of the land from the time they have purchased the same.

3. One by name Dandu Pentaiah who purchased this property along with the 1st petitioner and who is the father of the petitioners Nos. 2 to 4 and husband of petitioner No. 5 applied to the Industrial Trust Fund in the year 1951 and obtained an allotment of Ac. 0.99 cents bearing plot No. 6 which was adjacent to the plot of the land the petitioners purchased. The Industrial Trust Fund, acting on behalf of the Government allotted that land under an agreement dated 6th September, 1951. Sri Dandu Pentaiah applied for allotment of that land stating that if that land was allotted it will form a compact block together with their own land, so that an industry could be started in that area as the same is situated in an industrial area. The petitioners further submit that they have been paying the cists continuously ever since they have purchased the land in question.

4. The Andhra Pradesh State Road Transport Corporation intended to purchase the land in question and there was some correspondence between the petitioners and the 3rd respondent. The petitioners made an offer to sell their land to the 3rd respondent at the rate of Rs. 40/- per square yard. The 3rd respondent passed a resolution resolving to purchase the land at the rate of Rs. 25/- per square yard. The petitioners were asked to give a letter of consent and they have given their consent to sell their land at the rate of Rs. 25/- per square yard. When the 3rd respondent began to construct the fencing with cement poles and barbed wires enclosing the land of the petitioners, the petitioners approached the General Manager of the 3rd respondent. The General Manager seems to have replied stating that the Director of Industries acting on behalf of the Government handed over the land to the 3rd respondent and therefore he was proceeding to construct the fencing first in order to construct the building if necessary in future. It is under those circumstances the petitioners approached this Court with the above application under Article 226 of the Constitution complaining against the attitude of the respondents as high-handed and that it is violative of Articles 19(1)(b) and 31 of the Constitution of India.

5. In the counter filed on behalf of the 1st respondent it is stated in paragraph (3) that 'in reply to para 4 of the writ petition, I submit that the facts stated by the Writ petitioners viz., that the petitioners are owners of the plot of land to the extent of 25,000 square yards in Survey Nos. 65 and 66, Amberpet, Sarf-E-Khas of Hyderabad purchased under a registered sale deed from one K. Nagaiah in favour of the father of the petitioners Nos. 2 to 4 and the 1st petitioner, the vendor Nagaiah in his turn purchased the said land in 1350, Fasli, that after the death of Dundoo Pentaiah, his share devolved on the petitioners 2 to 5, that ever since they are in possession and enjoyment of the land are all incorrect. I submit that in the year 1931 an area of about 136 Acres and 4 Guntas including the 25,000 sq. Yards for which the petitioners are now setting up title was acquired by the Farman of H.E.H. The Nizam of Hyderabad in 1341 in Musheerabad Village for Industrial Trust Fund. The 1st petitioner was never an applicant.

6. This plot was divided into several plots by the Engineer, City Improvement Board. The affairs relating to the allotment of plots etc., were being looked after by the then Industrial Trust Fund. The Executive Engineer of the City Improvement Board handed over the plots together with the blue-prints to the Industrial Trust Fund. The plots for which the petitioners are now claiming title is the land included in plot No. 6 of the plan prepared by the then City Improvement Board. The total extent of this plot is Ac. 5.02 cents. It includes the Ac. 0.99 cents which the petitioners state that they had applied for lease. Sri Dandoo Pentiah had applied for grant of a lease for the entire plots to the Joint Secretary, Industrial Trust Fund on 14-5-1949, enclosing a cheque for Rs. 500 as deposit towards the plot for the purpose of establishing Soap Plant having 25 tons capacity per day and also the Printing Ink Manufacturing Plant. In paragraph 6 it is stated that Dandoo Pentaiah applied for lease of 5 Acres in Plot No. 6 on 14-5-1949 with specific undertaking that he would install one continuous Soap Plant with auxiliary machinery having a capacity of 25 tons of soap per day. Accepting that on 10-10-1952 the plot to the extent of Ac. 0.99 cents in Plot No. 6 in the western side was handed over to Shri D. Pentaiah on 23-10-1952. The said Dandoo Pentiah did not execute any lease deed, nor did he start any construction. According to the respondent Dandoo Pentaiah violated the conditions of allotment. Sri Dandoo Pentaiah is stated to have failed to pay the rents also for the past 5 years.

7. It is under these circumstances, according to the 1st respondent, the allotment in favour of Dandoo Pentaiah was cancelled. The allotment was cancelled on 12-10-1973 and the possession of the plot was resumed on 13-10-1973 and on the same day it was delivered to the Andhra Pradesh State Road Transport Corporation after serving the orders of termination. The A.P.S.R.T.C. took possession of the plot. It is further stated in the counter that the petitioners have no right and if they have any title they could have taken appropriate action instead of resorting to invoke Article 226 of the Constitution of India. The petitioners are merely setting up title over the land which belong to the respondents. When there is a dispute about the ownership, the proper forum for agitation of such rights is the Civil Court but not the High Court under Article 226 of the Constitution.

8. The other counter affidavits filed on behalf of the respondents simply reiterated the stand taken by the 1st respondent. Sri P. Babul Reddy, the learned counsel appearing for the petitioners submits that the land in question belong to the petitioners as the registered sale deed referred to already indicate the petitioners having been in continuous possession and enjoyment of the land in question. They have been paying the cist. The Road Transport Corporation negotiated for the purchase of the land with the petitioners. The petitioners wanted to sell it at the rate of Rs. 40/- per square yard, but that was not acceptable by the 3rd respondent. The 3rd respondent passed a resolution stating that Rs. 25/- per square yard is the reasonable amount. The acceptance in that direction from the petitioners was also stated to have been obtained. Under these circumstances, the respondents' attitude in attempting to dispossess the petitioners from such lands in high-handed and that it is violative of the protection guaranteed to them under Article 19(1)(b) and 31 of the Constitution of India. The learned Advocate General appearing on behalf of the respondents submits that the land belonged to the Government as early as in the year 1931. The land in question was acquired b the Firman of H.E.H. The Nizam of Hyderabad in Mushirabad village for Industrial Trust Fund and the respondents were having both the title as well as the possession. Under these circumstances, the learned Advocate General contends that the remedy under Article 226 is hardly an appropriate one as the resolution of issues raised in this case involved disputed questions of fact and therefore the Civil Court is the proper forum for solving such problems. That is countered by the learned counsel for the petitioners by saying that though it is not meant to have questions of titles being decided in an application under Article 226 of the Constitution, still the possession of the petitioners was not disputed by the authorities concerned. They have been paying the cist and the 3rd respondent also negotiated with the petitioners for the purchase of the land in question and at no time their possession was disputed and that circumstance itself is sufficient to clothe them with an interest, which needs protection under Article 226 of the Constitution.

9. It is not as if the petitioners are setting up any alternative right to the land on the ground of having perfected their title by adverse possession. Their possession is based upon their purchase evidenced by certain registered sale deeds. In this case the title of the petitioner is disputed. The possession of the petitioner is also disputed and the respondents state that they acquired this land in the year 1931 itself.

10. The nature, scope and ambit of the jurisdiction of this Court under Article 226 of the Constitution thus falls for consideration in this Writ petition. Power is conferred on the High Court under Article 226 only for the enforcement of any of the rights conferred by part III and for any other purpose. In other words it is the enforcement of the rights, be they thus conferred under part III or under any authority of law, that is contemplated under Article 226 of the Constitution. Article 226 is not intended for the enforcement of a disputed right. The enforcement of the rights as contemplated under Article 226 is predicated on the assumption that he who seeks enforcement has a right inherent in him. Unless he establishes that right he cannot seek enforcement of the right under Article 226 of the Constitution when that very right is disputed and when that dispute can be resolved more satisfactorily through its being agitated in a Civil Court. I find that the power under Article 226 of the Constitution cannot be utilised for a satisfactory determination of such rights.

11. The Supreme Court said in the case of State of Orissa v. Ramchandra : AIR1964SC685 , that under Article 226 of the Constitution the jurisdiction of the High Court is undoubtedly very wide. Appropriate Writs can be issued by the High Court under the said Article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone, but though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226. In paragraph 11, the Supreme Court observed that 'Ordinarily, where property has been granted by the State on conditions which made the grant resumable, after resumption it is the grantee who moves the court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved it itself the right to resume may, after exercising its right, seek to recover possession of the property without fling a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondent could remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favor of the respondents, the High Court failed to appreciate the legal effect of the conclusion that question of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Article 226.' What is manifest from the aforesaid decision is that questions of title cannot be determined in proceedings initiated under Article 226 of the Constitution of India. In the present case, it is not as if the petitioners claimed any title on the basis of their being in possession. Their possession is based upon title which itself is disputed. Therefore when the title of the petitioner is disputed and that position is not disputed and when that possession also is disputed, it is not possible for this court to grant the relief claimed by the petitioners. The possibility of the petitioner being dispossessed before they can seek remedy in a Civil Court on account of the need to issue a notice under section 80 C.P.C. is hardly a circumstance to be taken into account while exercising the discretion conferred upon this Court under Article 226 of the Constitution. My attention has been drawn by Sri Waghray, the learned counsel appearing in Writ petition No. 6116 of 1973 raising the same point to a decision rendered in the case of Bishandas v. State of Punjab : [1962]2SCR69 . That is a case where on the land belonging to the Government, a Dharmasala, temple and shops were constructed. The Darmasala was built for the benefit of the travelling public and the members of the public offered worship in the temple. After the death of the person who obtained originally permission from the State Government to build that Dharmasala and temple, his family members continued the management. But they were subsequently dispossessed of the properties by an executive order passed by the Sub-Division Officer, in pursuance of the directions given by the Deputy Commissioner and the management of the property was placed in charge of the Municipal Committee. The petitioners filed a writ petition under Article 32 of the Constitution challenging the action of the Government. The Supreme Court was of the view that the petitioners before them were not trespassers because the land was granted by the Government and the structures brought in were only subsequent to the obtainment of the permission from the Government. In the context the Supreme Court held that because the petitioners were not trespassers, the action of the authorities is highhanded and therefore the writ sought for was granted.

12. The point raised in our case is whether the petitioner should be entitled to have a disputed right enforced under Article 226 and whether a civil Court is not the proper forum for agitating such disputed questions pertaining to title and possession. There is nothing in that decision to throw any light upon this aspect of the matter. There is a positive assertion by the respondents in the present case that these lands were acquired by H.E.H. the Nizam of Hyderabad and that they belonged to the Government, with a counter assertion by the petitioners to the effect that they own the lands. The possession also, as already noticed of the petitioners, was disputed and the identify of the property also is disputed. Such disputed question of fact can hardly be said to be proper matters that could be satisfactorily disposed of through affidavits in the proceedings under Article 226 of the Constitution.

13. The next case is one rendered in the case of Wire Netting Stores v. Delhi Development Authority (1960) 1 SCWR 265. The matter in that case arose under the provisions contained in the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. The Supreme Court held that the action taken by the Estate Officer without following the procedure prescribed under Section 4 is not valid in law.

14. In the present case such a provision was not involved by the respondents and according to the contention of the petitioner the Government ought to have taken steps either under the provisions contained in the Land Encroachment Act or under the Land Acquisition Act. That contention was rightly repelled by the learned Advocate General by saying that when the Government is claiming the title in the land in question there is no question of initiating the proceedings under Land Acquisition Act , and when according to the Government the petitioners are not in possession there is no question of invoking the provisions contained in the Land Encroachment Act for dispossessing the petitioners treating them as trespassers. Therefore, this Supreme Court decision, which merely involves the action taken contrary to the provision of law is of little assistance to the petitioners in this case.

15. No authority has been placed by the petitioners before us to show that in the context of Article 226 of the Constitution of India, disputed rights also can be enforced. In the present case, the rights that were sought to be enforced were such disputed rights whether they relate to the title or to the possession. For the aforesaid reasons, I am satisfied that the discretion conferred upon this Court under Article 226 of the Constitution cannot be exercised in favour of the petitioners and the issues raised in this case can satisfactorily be determined only in a properly constituted suit before a Civil Court and the remedy sought by the petitioners is misconceived. The Writ petition is therefore, dismissed, but in the circumstances without costs. Advocate's fee Rs. 100/-.

16. Petition dismissed.


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