State Of Telangana And 5 Others vs Kolluri Anjaiah And 4 Others

The present Writ Appeal has been filed by the State Government being aggrieved by the Order dated 25.10.2019 passed in W.P.No.39226 of 2017 and Contempt Case No.3215 of 2018 by the learned Single Judge.

The undisputed facts of the case reveal that the lands in survey Nos.707 and 708 situated at Garmilla Shivar Mancherial Mandal, Mancherial Mandal are owned by the State of Telangana and a writ petition was preferred for issuance of a direction to the State Government and other revenue authorities to restore the cart track public road which was allegedly existing for more than 20 years. It was stated by the writ petitioners that a cart track is in existence with 10 feet width and 1350 feet length in the Government land and the farmers are using it. However, the State Government is fencing the land and is not permitting the farmers to use the land. The learned Single Judge has initially granted an interim order in the matter and later on, allowed the writ petition. The learned Single Judge has granted four weeks time to comply with the order in the writ petition and restore the cart track in survey Nos.707 and 708 for the use of the petitioners and if not, the appellants 2, 3 and 4 shall suffer simple imprisonment of two months and fine of Rs.2,000/- (Rupees two thousand only).

This Court has carefully gone through the order passed by the learned Single Judge.

The learned Single Judge, in the case of disputed questions of facts, where the writ petitioners were seeking enforcement of easementary rights, has allowed the writ petition. The stand of the State Government before the learned Single Judge was that no cart track was in existence and the same has to be proved by way of evidence. In spite of the categorical statement made before the learned Single Judge, the learned Single Judge has allowed the writ petition. It has also been brought to the notice of this Court that over the land in question, a hospital is proposed to be constructed and it is nobody's case that the respondents in the writ appeal do not have any alternative passage to go to the agricultural fields. It has also been brought to the notice of this Court that the respondents in the writ appeal are not the adjoining land owners also.

The counter affidavit filed by the respondents in the writ petitions makes it very clear that neither any road nor any cart track was in existence in survey Nos.707 and 708 of Garmilla Village. Reference was made by the learned Single Judge to some proceedings, which took place before the District Collector and in spite of the fact that the disputed questions of facts were involved, the writ petition was allowed. A Report was also submitted by the Assistant Director of Survey and Land Records dated 19.04.2018, which also reflected that no cart track was in existence. The State Government took a categorical stand before the learned Single Judge that in case of enforcement of easementary right, especially when disputed questions of facts are involved, the writ petition is not a remedy and the matter has to be adjudicated before the civil Court. However, the learned Single Judge has allowed the writ petition and relevant portion of the said order is reproduced as under:-

"24. Lastly, it is contended by the Special Government Pleader that petitioners are seeking to enforce an Easementary right, that such a right has to be adjudicated before a civil Court and that it is a disputed question of fact. Reliance is also placed on the judgment of the Supreme Court in Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449 and it is contended that the petitioners having approached the Court with unclean hands, they should be denied relief. Reference is also made to Nivedita Sharma v. Cellular Operators Assn. of India 2011 (12) Laws (SC) 42, Dorab Cawasji Warden v. Coomi Sorab Warden 1990 (2) Laws (SC) 2, Authorized Officer, State Bank of Travancore v. Mathew K.C. Judgment of the SC in Civil Appeal No.1281 of 2018 and Thansingh Nathal; Onkarmal Jawalaprasad; Indrachand Premsuch; Ramdeo Satyanarayan; Shewpratap Tantia v. Superintendent of Taxes, Dhubri, Superintendent of Taxes, Dhubri, Superintendent of Taxes, Dhubri 1964 (2) Laws (SC) 11 to contend that the petitioners are only avail the remedy in the civil court.

In Real Estate Agencies vs. State of Goa and others (2012) 12 SCC 170, the Supreme Court held, relying on the decision in ABL International Limited vs. Export Credit Guarantee Corporation of India Ltd (2004) 3 SCC 553 that there is no absolute rule that in all cases involving disputed questions of fact, the parties should be relegated to a Civil Court; and that it is the duty of the High Court, while entertaining a Writ Petition, to see whether there is any substance in the claim of the State or its entity or such a plea of alternative remedy has been raised merely to relegate the petitioner to a more "lengthy, dilatory and expensive process" that is inherent in a civil suit.

In my opinion, the whole intention of the respondents in the instant case appears to be to drive the petitioner to such lengthy, dilatory and expensive process of a civil suit.

The Supreme Court in State of Tamil Nadu v. Elephant G. Rajendran 2019 (3) ALT 83 (SC) held that power given to the High Court under Article 226 of the Constitution of India is power of very vide nature which does not contain any fetter except self-imposed restrictions.

In my considered opinion merely because the respondents raised a dispute in regard to the facts of the case, this Court is not bound to relegate the parties to a suit, where the action of the respondents is clearly arbitrary and unreasonable and violates Article 14 of the Constitution of India like in the instant case and deprives poor farmers of access to their agricultural lands and from ekeing out their livelihood, thereby violating Article 21 of the Constitution of India. This Court is entitled to entertain the Writ Petition and grant relief to the petitioners.

Accordingly, I.A. No.1 of 2019 in W.P. No.39226 of 2017 is dismissed and W.P. No.39226 is allowed as prayed for, with costs of Rs.2,000/- (Rupees two thousand only) to be paid by the 1st respondent to the petitioners.

Contempt Case No.3215 of 2018:

Having regard to the order passed above in the Writ Petition, the respondents in the Contempt Case are granted four weeks time to comply with the order in the Writ Petition and restore the cart track in Sy. Nos.707 and 708 for the use of the petitioners. If not respondents 2, 3 and 4 shall suffer Simple Imprisonment of two months and fine of Rs.2,000/- (Rupees two thousand only).

Contempt Case is allowed as above. No costs."

The facts of the case reveal that the hospital is being constructed over the Government land in survey Nos.707 and 708 of Garmella Village. As per the contention of the learned Government Pleader, there was no cart track and as per the contention of the writ petitioners, there was a cart track and documents were filed by both sides to establish their claims and counter claims. As it was purely a civil dispute seeking enforcement of easementary rights, the learned Single Judge ought not to have granted relief in exercise of jurisdiction under Article 226 of the Constitution of India.

In the considered opinion of this Court, the matter certainly requires the parties to adduce evidence and it is only after the evidence is adduced, appropriate finding can be arrived at by the civil Court and therefore, the order passed by the learned Single Judge deserves to be set aside and is accordingly set aside with liberty to the respondents herein to approach the civil Court. It is needless to mention that the observations made and the findings arrived at by the learned Single Judge will not come in the way of parties in case civil suit is filed. The parties shall be free to lead evidence before the trial Court and the trial Court, based on the evidence adduced by both parties and the statutory provisions, shall be free to pass a Judgement and Decree in the matter.

With the aforesaid, the writ appeal is allowed.

Miscellaneous petitions pending, if any, shall stand closed.

There shall be no order as to costs.