B. Vijeyender Reddy vs Sri Md. Yousuf and Others

V.V.S. Rao, J.—The petitioner claims to be the owner of land admeasuring Ac.0.17 guntas in S.No 131 and Ac.0.34 guntas in S.No.137 of Thokatta Village. The Tahsildar, Secunderabad issued a notice u/s 7 of A.P. Land Encroachment Act, 1905 on 23.5.1983. He gave an explanation contending that he is not an encroacher that he is the owner of the land and that he constructed a compound wall surrounding the entire land after obtaining permission of the Cantonment Board on 2.2.1976. The petitioner was also served another notice on 23.11.1983 calling upon him as to why he should not be evicted from the encroached land admeasuring Ac.0.17 guntas of the land comprised in S.No.131 of the same village. The petitioner submitted explanation and also requested Tahsildar, Secunderabad to demarcate S.Nos.131 to 137 with reference to old S.No.43, which was sub-divided into S.Nos.131 to 137. The Tahsildar issued proceedings on 9.4.1985 ordering eviction of the petitioner from the land in S.Nos.131 and 137. The appellate authority rejected the Petitioner''s appeal on 19.7.1986. He filed a Writ Petition, being W.P.No.5566 of 1987 praying for a Writ of Certiorari to quash the orders of eviction dt.9.4.1985 as confirmed by the appellate authority.

This Court relied on the judgment of this Supreme Court in Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, and quashed the order of eviction giving liberty to the Government to institute a suit for declaration of title in accordance with the law laid down by the Supreme Court. The Government filed Land Grabbing Case, being L.G.C.No.106 of 1997 before the Special Court ( ''the Special Court'' for brevity) constituted under the A.P. Land Grabbing (Prohibition) Act, 1982 in respect of the lands in S.Nos.131 and 137. In the said case the petitioner and others figure as respondents and the case is pending before the said Special Court.

In this Contempt case the petitioner alleges that on 30.11.1999 at 10.30 a.m. Sri I.Johnson, Deputy Tahsildar, Sri Sabid Ali, Mandal Surveyor, Sri B.Suresh, Special Revenue Inspector came along with Police Constables and Demolition Squad of Hyderabad Collectorate and demolished Northern side compound wall of the house ignoring the protestations of the petitioner. Therefore gross disobedience on the part of the respondents in demolishing the Northern side compound wall is alleged. The petitioner states that though this Court quashed the orders under passed under Land Encroachment Act on 22.12.1989, the Contempt Case is within limitation as the alleged contempt was committed on 30.11.1999. Be it noted that when the case was filed on 6.12.1999, the Mandal Revenue Officer (Sri Md. Yousuf), the District Collector, Hyderabad (Sri Banwarlal) and the Principal Secretary to Government of A.P. (Sri P.V.Rao) were added as respondents 1 to 3 respectively. Later respondents 4 and 5, namely, Sri M.Suryanarayana Rao, Revenue Divisional Officer, Secunderabad and Sri Johnson, Deputy Tahsildar, Trimulgherry respectively, were added as respondents vide orders in Contempt Application No.1368 of 2000 dt.14.9.2000. The matter was listed before me on 30.6.2000 and notice was ordered. After receiving notice respondents 1 and 5 have filed counter affidavits.

The first respondent, who is the Mandal Revenue Officer of Trimulgherry Mandal stated that the land in S.Nos. 131 and137 of Thokatta village in Hyderabad Contonment area is Government land and adjacent to the land there is a tank called Ramanna Cheruvu in S.no.131, which is encroached by the petitioner to the extent of Ac.0.34 guntas in S.No.137 and Ac.0.17 guntas in S.No.131. The first respondent admitted the case of the petitioner in regard to the proceedings under the Land Encroachment Act and filing of the writ petition before this Court. But, denied any violation of the orders or directions of this Court, as alleged by the petitioner. It is further stated that the petitioner constructed a compound wall adjacent to nala, which forms boundary between Sitarampur and Thokatta villages. The down stream waters and surplus waters will flow through nala to Ramanna Cheruvu and the construction of compound wall along with nala is obstructing the flow of water into Cheruvu. The water got stagnated and spreading to low lying area of Mahatmanagar slum, which is a colony of persons belonging economically weaker sections to whom pattas were granted by the Government. The stagnation of water became a danger to the borewell in the slum and health hazards and became a source of unhygienic. Due to continuous flow of drain water, a portion of the wall was collapsed. Having regard to this, the revenue officials made hole on 30.11.1999 to the wall constructed in the nala to facilitate free flow of water. The petitioner filed an application being I.A.No.1357 of 1999 in L.G.C.No.106 of 1997 seeking an order of injunction restraining the respondents from interfering with peaceful possession and enjoyment and also prayed for award of damages in a sum of Rs.2, 00,000/- or in the alternative a direction to the respondents to maintain status quo by constructing compound wall. It is further stated that the Special Court appointed an advocate commissioner to note the physical features of the property in question. The advocate commissioner submitted a report and the Special Court after considering the same permitted the petitioner to reconstruct the wall without obstructing the nala subject to petitioner giving undertaking that he will remove the compound wall if the Government succeeds in the Land Grabbing Case. The first respondent also raised objection for impleading respondents 2 and 3 against whom no specific allegation is made.

The fifth respondent in a separate counter while adopting counter affidavit filed by the first respondent states that he was in- charge Mandal Revenue Officer of Trimulgherry from 27.11.1999 to 3.12.1999. On the representation made by the slum dwellers of Mahatmanagar slum that stagnation of water is causing health hazards as well as polluting the drinking water bore well besides resulting in mosquito menace, the Revenue Divisional Officer, Secunderabad, issued instructions to remove blockage to facilitate free flow of drain water. Keeping this in view, with the assistance of field staff he made a whole to the wall at the nala portion only. He was not aware of the orders passed by this Court in W.P.No.5566 of 1987, as he was not a party to the earlier writ petition. When the petitioner produced a copy of the order in W.P.No.5566 of 1987 he and other staff stopped the work and left the place.

The petitioner filed two separate reply affidavits traversing the allegations made by the first and fifth respondents in their counter affidavits.

Sri M. Narendra Reddy, learned counsel for the petitioner did not dispute that there is no specific allegation against the District Collector and Principal Secretary (learned Advocate General submits that at the relevant time Sri P.V.Rao was not Principal Secretary). Therefore, the Contempt Case against respondents 2 and 3 was closed on 12.10.2000. Therefore, we are concerned with the alleged highhanded action by respondents 1, 4 and 5. The learned counsel for the petitioner and the learned Advocate General for the respondents have made submissions on the points taken in the respective pleadings.

The point that arises for consideration is whether by making whole in the Northern side compound wall or by demolishing the said compound wall, as alleged by the petitioner, the respondents have substantially interfered with due course of justice?

Admittedly, till November 1999 the respondents did not interfere with the possession of the petitioner. According to the respondents the wall constructed by the petitioner in the nala is obstructing free flow of drainage water as well as surplus water, which flows through Mahatmanagar slum. This naturally resulted in mosquito menace as well as unhygienic conditions. Therefore, the Revenue Divisional Officer, the fourth respondent herein, instructed to remove the obstruction facilitating free flow of stagnated water. An interesting aspect of the matter is that both sides admit that when the fifth respondent and others demolished the wall may be either by making a hole or breaking the wall the petitioner produced a copy of the order dt.22.12.1989 and the respondents stopped further action. The averment in this regard by the fifth respondent is as under.

"I removed the blockage in the nala allowing the free flow of drain waters by making a hole to the wall at the nala portion solely with a bona fide intention and in public interest. At that stage, I was not aware about the earlier orders passed by this Hon''ble Court in W.P.No.5566 of 1987 dt.22.12.1989. I was ignorant of that order as I was not a party to the writ petition and at that time, 11 years ago, I was working as L.D.Clerk in the Hyderabad Collectorate and in the M.C.H. on deputation. At that stage, the petitioner herein mentioned about the order of this Hon''ble Court dt.22.12.1989 in W.P.No.5566 of 1987. Though he did not show us the order, we stopped the work and left the place. Subsequently, it was noticed that a portion of wall in the nala area collapsed obviously due to the continuous flow of drain waters."

The above allegation is not specifically denied in the reply affidavit filed by the petitioner. Therefore, it is reasonable to infer that the respondents never tried to interfere with the possession of the petitioner during the last about 11 years and that though they tried to take steps for driving out the stagnated water they stopped the work when the petitioner informed about the order dt.22.12.1989 in W.P.No.5566 of 1987.

Sri M. Narendra Reddy has strenuously pleaded that though it is called Ramanna Cheruvu, there is no tank or nala in the vicinity of the petitioner''s land. I, therefore, directed the learned Advocate General to produce the relevant revenue record on 20.1.2001 the Special Government Pleader Sri A. Veera Swamy has placed before me the Village Map as well as Setwar ( survey record). In these, S.Nos.131 and 137 are described as "Government Poramboke Cheruvu" (Government Tank). Further, the order passed by the Special Court in I.A.No.1412 of 1999 dt.13.3.2000 permitting the petitioner to reconstruct the demolished wall without obstructing the nala, also shows that the submission made before this Court that there is no nala is not correct.

The learned counsel for the petitioner has relied on the report of the advocate commissioner submitted to the Special Court. According to this report the wall is 129 feet in length and there is open land on the Northern side of the wall. The wall is 4 feet deep in the ground and 4 feet above the ground. The wall above ground is brick construction to a height of 3 feet. The advocate commissioner in his report submitted to the Special Court noted as under.

"Accordingly the M.R.O., orally informed me that the drainage water of that area flows from East to North West along with "CD" wall (demolished wall). According to the version of the M.R.O. and Dy. Tahsildar there is a nala flowing from East along the "CD" demolished wall, but there is no sign of existence of proper nala, but due to slope water may flow that side. That the slum people came to the site and stated to me that there is a stagnation of drainage water and anger to their life and health and that therefore they complained to neither authority. Even the petitioner stated to me that he has complained to the authorities about the stagnation of drainage water. I already stated in para supra about the stagnation of drainage water by the side of North Eastern portion of the "CD" wall at the starting point of demolished wall to the extent of area 10 X 20. That is 10 feet on the side of the starting point "G" as per my plan."

The above observations of the advocate commissioner show even according to the petitioner there is stagnation of drainage water by the side of Northern portion of the wall and it was found demolished to the extent of 10 feet on the side of starting point. This belies the contention of the learned counsel for the petitioner that the wall to an extent of 129 feet was demolished. Further, the advocate commissioner''s observations that there is stagnation of water on the North Eastern portion of the wall to an extent of 10 feet from the starting point was demolished, supports the case of the contemnors that they made a whole to facilitate drainage of stagnated water and later the compound wall collapsed on its own.

The statement made by the Deputy Tahsildar, the fifth respondent herein, before the advocate commissioner, in my opinion, should be appreciated having regard to the observations made by the advocate commissioner as noticed hereinabove.

The fact that the respondents did not violate the order of this Court for the last 11 years, that the respondents made a hole or broke open the wall to drive out the water only and that the compound wall was not broken with a view to interfere with the petitioner''s possession of the land in S.Nos.131 and 137, and the fact that the Special Court permitted the petitioner to construct the wall without obstructing the nala clearly show that the action of the respondents does not in any manner interfere with due course of justice. In this context, it is appropriate to refer to Section 13 of the Contempt of Courts Act, 1971, which is as under.

"13. Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice."

The statutory prohibition that no Court shall imposed a sentence under the Contempt of Courts Act unless the contempt alleged substantially interferes or tends to substantial interference with the Course of justice cannot be forgotten in a case like the one on hand. No doubt, the respondents approaching the Special Court for appropriate directions having regard to stagnation of water in the nala would have been an ideal situation. In any view, the respondents'' contention is vindicated by the order of the Special Court in I.A.No.1412 of 1999 itself.

Therefore, having regard to the totality of the circumstances, I am of the considered view that though the action of the respondents is not without an element of highhandedness, the same does not in any way interfere with the due course of justice. Accordingly, the Contempt Case fails and the same is dismissed. The Rule is discharged.