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Judgment
The petitioner association filed these writ petitions seeking a direction against respondents 1 and 2 to provide adequate protection to the petitioner Welfare Association for the purpose of developing the open place measuring 289.3 Sq. yards in one writ petition being WP No.31271 of 1997. The petitioner also sought similar direction with respect to lands measuring 481.4 Sq. yards and 178.4 Sq. yards in WP Nos.31082 of 1997 and 27237 of 1997 respectively. All the writ petitions were heard together, counters have been filed and they are decided by this common judgment.
The petitioner submits that, these petitions are filed in public interest. He submits that respondent No.3 and his cousins were the owners of land admeasuring 65,999.57 Sq. yards in Survey No.30, 31 and 32 situated at Kakaguda Village, Sccunderabad Cantonment, Secunderabad. The said land was agricultural land. To convert the land into residential area, permissions had to be sought from Central Government, State Government and local authority i.e., respondent No.1. For obtaining such a permission the owners had to gift 40% of the land which would be utilised by the Cantonment Board for the general welfare of the area for the purpose of roads, parks, open area and so on. The land was ordered to be converted and respondent No.3 sold his share of agricultural land which was allowed to be converted into residential land to Jyothi Co-operative Housing Society. One Mr. Parandhamam sold his share to Swamy Ayyappa Co-operative Society. The said two societies have sold the properties to their respective members and two colonies developed. Jyothi Co-operative Housing Society is located in Sy. No.30, 31, and 32 in the total area of 6,534 Sq. yards and plotted area is 3,919 Sq. yards. An area of 2,614 Sq. yards was gifted to the Cantonment Board for open area, Roads and Parks. Out of this land, respondent No.l allotted 481.4 Sq. yards to the association for maintaining a park. According to the petitioner, respondent No.3 gifted 40% of the vacant land to the Cantonment Board and out of this 40% an area of 481.4 Sq. yards were meant for the park. But, the case of the petitioner is that, on the one hand 40% of the area was gifted out and on the other hand the respondent owners are making efforts to grab the land by making constructions illegally over the open space. It is submitted that, after the persons satisfied that the colony would be with basic amenities, they purchased the plots in the said colony. The petitioner further submits that the vacant land demarcated for the park in the layout is being tresspassed by the encroachers and the land grabbers. This was brought to the notice of the Cantonment Board through representations dated 16-11-1996, 5-1-1996, 25-9-1996, 13-4-1996, 15-2-1997 and 28-6-1997. The part was not fenced as according lo the petitioner respondent No.l expressed his inability due to the paucity of funds. Thereafter, according to the petitioner they requested respondent No. 1 to grant permission to them to develop the open space to the extent of 481.4 Sq, yards in Sy.No.30, 31 and 32 into the park for children and as green belt. The Cantonment Board granted permission through letter dated 1-7-1997. But, when the association started implementing the order, respondent No.3 accompanied with some un-social elements arrived and forcefully entered into the said property on 6-7-1997 and drove away the members of the petitioner association, their men, material and tdhreatened with dire consequences. Respondent No.3 claim the property to be his own property and did not allow the petitioner association to develop the-park. The matter was then brought to the notice of the Cantonment Board, but the Cantonment Board expressed its inability to give adequate protection for the fencing of the park. The Police was also approached but according to the petitioner. Police showed their inability as according to them it was a civil dispute. Then, petitioner moved a suit before a civil Court. The Court asked the petitioner to file a Valuation Certificate as it was a public park. The petitioner submits that he got filed a Valuation Certificate and the suit was not entertained. The petitioner submits that the land has vested in the Cantonment Board u/s 108 of the Cantonment Board Act and it is their duty to provide protection to the property and to the residents of the Colony, In this background the petitioner prayed that respondent Nos.l and 2 be directed to provide adequate protection for implementation of letter dated 1-7-1997 by fencing and developing the open space mentioned in each of the writ petition situated in Sy. No.30, 31 and 32 of Kakaguda, Secunderabad.
The writ petitions were entertained, notices were issued and counters filed. In the counter, the respondent No.l stated that, on site inspection conducted on 2-12-1997 carried out by Sri M. Phani Kumar it was noticed that Sri J. Parandhama s/o J. Satyanarayana constructed six shops in the ground floor on open land of Sri Swamy Ayyappa Co-operative Hosing Society Ltd., 108, Bazar Road in Sy. No.30, 31 and 32, Kakaguda Village, Secunderabad. The lay out of the petitioner society was sanctioned by the Cantonment Board under Cantonment Board Resolution No.22 dated 28-3-1993. It is also stated that the land where the shops came up was earmarked as open space meant for part in the sanctioned layout. It is further stated that the society had gifted 40% of the area i.e., Roads and open space to the Cantonment Board by a registered gift-deed. The 40% area was the common area and therefore the shops constructed on the open space was treated as encroachment and proceedings were initiated for removing the encroachment. Meanwhile, Mr. Parandhama filed a civil suit against the Cantonment Board and the Court directed the respondent to maintain status quo. After staling this, the respondent No.l also stated that the respondent Board has limited resources and with the limited resources it is not possible for the Cantonment Board to maintain each and every open area provided in hundreds-of layouts sanctioned by the Board as public park. The respondent Board admitted that, they had issued the letter dated 1-7-1997 giving no objection to the petitioner for fencing park areas and other open areas forming part of the gifted land subject to certain conditions. The conditions included that all expenditure on the development of the park shall be borne by the association. Gifting of 40% of open area for roads, parks by original pattedars was not disputed. It was also stated in the counter that the original pattedar of the properly has encroached a portion of the open land and filed a civil suit being OS No.215/97 and obtained slams qua order on the file of I Asst. Judge, City Civil Court, Secunderabad.
After examining this affidavit this Court passed "an order on 11-12-1997. Following order was passed :--
"The grievance of the petitioner is that certain land demarcated for a park is being encroached, and the respondents, who are the owners of the land, and on whose behalf the petitioner is developing the parks are not providing the necessary assistance in protecting the open land.
I have gone through the counter. It makes a pathetic reading. The respondents have almost stated that they are helpless and that the land has been encroached by certain individuals and even shops have been constructed on the said open land. I do not know, ifthe Cantonment Board was not able to stop the encroachments, who else could do it.
Under these circumstances, I direct the respondents to furnish the details as to who has encroached the open land belonging to the Cantonment Board, and how much land has been encroached upon, and what steps have been taken to remove the encroachments, by way of an affidavit. It is stated that six shops have been constructed in the land. The concerned officials of the Cantonment Board shall also file an affidavit stating as to what were they doing when the shops were being constructed as the shops could not been raised within hours.
It is also stated that status quo orders have been obtained. The respondents shall furnish the details of the cases in which status quo orders were passed by civil Courts. Post on 15-12-1997 on which date the respondents shall file an affidavit furnishing the above details."
After this order was passed an additional counter-affidavit was filed. In para 4 it gives the details of the layout with respect to Sy. No.30, 31 and 32 of Kakaguda Village. In para 5 it is stated that the Society had handed over 40% of the area for roads and parks to the Cantonment Board by way of gift-deed for Phase-1. For Phase-2 the Society, had not handed over 40% of the area to the Cantonment Board. Similarly, the other Society Swamy Ayyappa Colony had handed over 40% of land to the Cantonment Board. It is further stated that the total area of the parks is 486 Sq. yards, some encroachments had taken place in the park area opposite to plot Nos.10 to 13 of Swamy Ayyappa Colony by J. Parcmdhama and 6 shops were constructed with RCC Pillars, brick walls covered with RCC slab. The encroacher J. Parcmdhama filed a suit against the Cantonment Board before I Asst, Judge, City Civil Courts, Secunderabad bearing OS No.259/97, the Court passed an order of status quo. The respondent had also filed counter and prayed for vacation of the interim order passed. It is further stated that in view of the order passed by the civil Court the Cantonment Board could not carry on the demolition. It is further stated that respondent Board was not a law enforcement authority and the encroachments could not be removed because of the orders passed by the civil Court.
After the additional counter-affidavit was filed this Court passed another order on 22-12-1997 which is reproduced below :
"Additional counter-affidavit has been filed in this petition. It is stated that there is no encroachment. In this petition it is prayed that the park given to them for development is needed to be protected and fenced and the respondents have agreed in their counter that it has been allotted to the petitioner for development into a park. However, it is stated that in case of any encroachment it may not be possible for them to give much help to the petitioner because the Cantonment Board essentially is not a law enforcing agency. I do not agree fully with the learned Counsel for the respondents, because in terms of the Cantonment Act there are powers with them to proceed against the encroachers. Therefore, it is expected of them, whenever there is any attempt to encroach, they will discharge their duties in accordance with the Cantonment Act and they will also inform the law enforcing agencies so that appropriate steps are taken by the Police also to protect the possession of the petitioner-Association over the piece of land which has been given to them for development as a park. Respondent No.2 is directed to give sufficient protection to the petitioner-Association while they start fencing of the park and developing the park."
On the same day this Court had also passed another order directing that Sri J. Parandham be made a party respondent as it was alleged in the additional counter that he had made encroachment. A show-cause notice was also directed to be issued to Sri Parandham as to why he should not be ordered to remove the encroachment. The learned I Asst. Judge, City Civil Courts, Secunderabad was also directed to send the file pertaining to the case to this Court. The file was received. Sri Parandham also filed a counter-affidavit. He stated in his counter that he had a old house in plot No.116/A and 116/B. The first respondent assessed the said house and allotted the house Nos.3-7-116/A and 3-7-116/B. He further stated that he has been paying the house tax to the 1 st respondent. Since the house was in dilapidated condition he demolished the house and constructed a house in January, 1997 in place of old house. He further stated that the land in his possession was not land out of 40% reserved for open space. He submitted that the land which has been marked as open space in the lay out is not occupied by anybody and is available as per the layout plan. He further stated that neither the petitioner-Association nor the 1 st respondent has any right over the house and land in his possession. He was the absolute owner of the house and the land in his possession and he has not made any encroachment. He submitted that he filed a suit OS No.215/97 before I Asst. Judge, City Civil Courts, Secunderabad seeking permanent injunction and it is pending.
After this affidavit was filed another order was passed by this Court on 19-2-1998 appointing a Commissioner. The relevant portion of the order reads as under:
"All the parties agree that some of the land was encroached upon according to the layouts prepared but none of the parties agree that he has encroached. All the parties agree that 40% of the original land was kept as open land for park as well as roads. But, at the same time the Cantonment Board submits that there have been encroachments and some buildings were constructed and demolished but again the buildings were constructed on the lands which were meant to remain open.
Under these circumstances, I deem it appropriate to appoint a Commissioner who shall visit the spot and identify the place which might have been encroached upon which was meant to be used as open place. In case he finds any encroachment he will report as to who is in occupation of such encroached property and what is the nature of such land at present whether open land is in occupation of the encroacher or whether encroached land is converted into built up area. Accordingly, I appoint Additional Chief Judge, City Civil Court, Secunderabad as Commissioner who shall visit the spot after giving a notice to the parties. He shall submit his report within a period of two weeks. His fee shall be Rs.3,000/- to be shared by the petitioner and Cantonment Board."
The learned Commissioner has filed his report and I have heard the learned Counsel for the parties at length.
After hearing the matter it was reserved for judgment and while going through the record this Court found that the Commissioner had also reported that one Sri C. Narsing Rao had also encroached land to the extent of 64.50 Sq. yards, therefore the final judgment was not dictated and an order was passed on 30th March, 1999 directing issuance of notice to Sri C. Narsing Rao. He was also asked to show-cause as to why a direction may not be given to the Cantonment Board to evict him from the alleged encroached area. He appeared through his Counsel and also filed his counter. The matter was again heard on 19-4-1999.
The following observations have been made by the Commissioner in his report.
With respect to WP No.27237 of 1997 the learned Commissioner observed that the open space and the park area referred in the said writ petition is not occupied by anybody and is not encroached. However, he stated that in the layout plan of Jyothi Venkataramaiah Colony Phase-III which is not subject matter of the said writ petition one Sri J. Sitaram who is 3rd respondent in the writ petition has encroached and constructed rooms on land measuring 82 Sq. yards. He further stated that Sri C. Narsing Rao has encroached upon a land measuring 64.50 Sq. yards. With respect to WP No.31082 of 1997 the learned Commissioner found that, according to the lay out plan the park area is 308 Sq. yards and the same is open place and is not" encroached by anybody. He also found that one Sri G. Jagan Mohan Rao has encroached upon 1,656 Sq. yards wherein a row of pucca houses with two storied duplex flats are under construction. He also found that Sri K. Linga Reddy President of the petitioner association has also encroached 248.60 Sq. yards which is vacant land. Sri Ram Kumar Goel has encroached upon 360 Sq. yards which is vacant. M/s. Santosh Apartments has encroached upon an extent of 135.66 Sq. yards wherein a multi storied building was constructed. The owner of plot No.9 has encroached 50 yards.
Counters have been filed by the respondents and all those persons who have been made respondents by this Court after the report came that they were the alleged encroachers. All the persons who are arrayed as respondents and against whom the Commissioner has given a complaint that they are encroachers have stated in. their counters that they are not encroachers and the land in their possession is in fact owned by them. In my view this is a question of fact which has to be dealt with by appropriate authority. However, from the report of the Commissioner and from the counters filed by the respondents it is clear that the park areas are not encroached and they are not fenced. Petitioners have already been permitted lo fence.
Therefore, these writ petitions are allowed to the extent that the open areas left in the lay out plan as parks shall be fenced immediately and any resistance offered in this connection by anybody shall be met with by the Cantonment Board in accordance with law. The Cantonment Board and the concerned Police Officials are directed to provide necessary assistance for fencing such parks and protection of such parks.
The Commissioner''s report cannot also be brushed aside although this Court cannot in the present circumstances direct that the persons who have been named encroachers by Commissioners be evicted. However, it is not a matter on which this Court can watch only as a spectator. Therefore, I direct the Cantonment Board to take up the matter of each of the respondents against whom the Commissioner has stated ihat he is an encroacher and pass appropriate orders in accordance with law. If the Cantonment Board comes to the conclusion that any of the respondents is an encroacher he should be thrown out of the property and if any construction has been made on such land and without the permission of the Cantonment Board that construction should be demolished in accordance with law.
One of the parties has filed a suit being OS No.215 of 1997 in which status quo order has been passed. According to the plaintiff in the suit himself he has constructed a house without obtaining permission. Therefore, he cannot be allowed to go on with the construction unless his rights are decided in the suit. Therefore, the status quo order shall be construed as an order of status quo for both the parties. Neither the Cantonment Board shall demolish the property in question in that suit nor the party who has filed the suit shall proceed with further construction till the suit is decided. The learned Judge is directed to decide the suit finally within a period of two months.
With these observations these writ petitions are disposed of. No costs.