Or.39, rule 1 and 2 CPC- When there is a serious dispute about the title -when the pattas are granted to Slum Dwellers in the year 1989 itself - when the respondents claim that the donor of them purchased the same in the year 2015 - when there is a allegations that land grabbers to displace the slum dwellers tried to erect construction on land - Merely recording an undertaking that the construction will not create equities, is not sufficient - for the grant of an injunction by the first Appellate Court and, as affirmed by the High Court, does not meet the parameters laid down under settled principles of law. - It is not possible at this stage to come to a conclusion that the respondents have established a prima facie case or that the requirements of balance of convenience and irreparable prejudice have been met by the original plaintiffs.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3938 OF 2019
(@ SLP(C) No.4305/2019)
THE DISTRICT COLLECTOR & ORS. APPELLANT(s)
VERSUS
SHAH ROOPRAJ & ORS. RESPONDENT(s)
O R D E R
Leave granted.
This appeal arises from a judgment and order of a
Single Judge of the High Court of Judicature at Hyderabad
dated 20 September 2018. In a petition under Article 227
of the Constitution, the High Court dismissed a challenge
to an order passed by the X th
Additional Chief Judge, in
the City Civil Court at Hyderabad on 2 November 2017
granting the prayer for interim relief pending the
disposal of the suit.
The suit scheduled property is situated at TS No.95,
Block C and Ward No.49 of Nampally Village and Nampally
Mandal with an extent of 2900 sq.m. According to the
appellants, it has been recorded in Column No.20 of the
Survey records, as land vested in the Public Works
Department. The then Collector, Hyderabad had in 1989
directed the Revenue Divisional Officer to issue site
pattas to certain slum dwellers who were residing in the
land. Accordingly, it appears that 129 house site pattas
2
were issued to eligible families.
On 19 September 2015, the Tehsildar Nampally Mandal
addressed a communication to the Station House Officer,
Begum Bazaar P.S., Hyderabad stating that the residents
of Surya Mahal Slum were being threatened by unknown land
grabbers, who were attempting to displace them.
The first respondent filed a Writ Petition before the
High Court, being WP 38327 of 2015, seeking protection
against alleged dispossession from an area of 1080 sq.
yards in Survey No. TS 95. The High Court passed an
interim direction on 25 November 2015 restraining
dispossession.
On 29 February 2016, the Tehsildar complained to the
Station House Officer, Begum Bazaar, Hyderabad about
illegal constructions in progress on the suit scheduled
property.
On 8 March 2016, FIR 84/2016 was registered on the
complaint of the Tehsildar.
The Tehsildar filed a counter affidavit in the Writ
proceedings submitting that in accordance with the
assignment policy of the State, the lands were not
alienable.
Another Writ Petition, being Writ Petition 8798 of
2017, was filed before the High Court in which an interim
direction was issued on 14 March 2017 restraining
eviction without following due process of law.
3
The present dispute arises out of OS 1197 of 2017
filed in the City Civil Court at Hyderabad for the grant
of a permanent injunction restraining the appellants from
interfering with the possession and enjoyment of the
respondent-plaintiffs over the suit property.
The Trial Court declined to grant an interim
injunction on 17 August 2017. The respondents filed an
appeal against the order declining an injunction. On 2
November 2017, the X th
Additional Chief Judge of the City
Civil Court allowed the appeal and restrained the
appellants from interfering with the peaceful possession
and enjoyment of the lands and construction activities of
the respondents. A Civil Revision filed by the
appellants was dismissed by the High Court on 20
September 2018. The High Court recorded that an
undertaking had been filed before it stating that
equities will not be claimed in respect of any
construction that may be carried out in the meantime, in
the suit. The High Court accepted the undertaking,
thereby allowing the construction activities to proceed.
This Court entertained the Special Leave Petition
filed against the order of the High Court on 15 February
2019 and, while issuing notice, stayed the operation of
the judgment of the High Court dated 20 September 2018.
Mr. K. Radhakrishnan, learned senior counsel
appearing on behalf of the appellants submitted that the
land in question vests in the State. Pattas were granted
4
to slum dwellers in 1989. It has been submitted that
after a town survey of Nampally Village was conducted
under the provisions of the Andhra Pradesh Survey and
Boundaries Act 1923, the land has been recorded as
government land by issuing a notification under Section
13(1). Moreover, it has been submitted that any
registration of the land in favour of a third party would
be contrary to the policy of the State as embodied in
GOMs 1406 of dated 25 July 1958, since under the
assignment policy, the assigned lands are only heritable,
but not alienable. A reference has been made to the
counter affidavit which has been filed before the City
Civil Court on behalf of the State by the Tehsildar, in
which it has been denied that the respondents were in
possession of the suit scheduled property. Moreover, it
has been submitted that a person by the name of Mangal G
who is alleged to have sold the suit property to the
husband of one of the plaintiffs did not possess any
right, title or interest and, hence, the plaintiffs have
absolutely no claim of title or ownership to the
property.
On the other hand, learned counsel appearing on
behalf of the respondents, urged that the High Court had
duly considered the material which had been produced on
record by the respondents to establish their possession
to the land. The respondents contend that they had
acquired the land under registered gift deeds in April
5
2015 from the above mentioned person by the name of
Mangal G. Moreover, it was submitted that under the
terms governing the original pattas, there was no
prohibition on the alienation of the lands after a period
of ten years.
Having heard learned counsel appearing on behalf of
the appellants and the respondents, we are of the view
that the defence which has been raised on behalf of the
appellants raises a serious triable issue. According to
the State, the title of the land in question vests in it.
Pattas were granted in 1989 to the slum dwellers. It has
been urged that an effort is being made by land grabbers
to displace the slum dwellers and to erect construction
on land, which is impermissible.
We are of the view that there is a serious dispute in
the present case in regard to the claim of ownership
which is made on behalf of the respondent � plaintiffs.
As the High Court noted, in the course of its order, the
claim of the respondents is that their donor had
purchased the lands under a registered sale deed in April
2015 after which gift deeds were executed in favour of
the respondents. The tenability of this claim will
require adjudication in the suit. The State has claimed
title and ownership to this land. In this background, we
are of the view that the High Court ought not to have
allowed construction to proceed on the land. Allowing
construction is liable to change the nature and character
6
of the land. Merely recording an undertaking that the
construction will not create equities, will not
sufficiently protect the interest of the State in a
situation, as present.
For the above reasons, we are of the view that the
grant of an injunction by the first Appellate Court and,
as affirmed by the High Court, does not meet the
parameters laid down under settled principles of law. It
is not possible at this stage to come to a conclusion
that the respondents have established a prima facie case
or that the requirements of balance of convenience and
irreparable prejudice have been met by the original
plaintiffs.
We accordingly set aside the impugned judgment and
order of the High Court. We accordingly restore the
order passed by the trial judge dismissing the
application for interim injunction.
We clarify that our observations, as indicated above,
are for the limited purpose of deciding the application
for interim injunction under Order XXXIX Rules 1 and 2 of
the Code of Civil Procedure, 1908 and shall not come in
the way of disposal of the suit.
The appeal is allowed in the above terms. There
7
shall be no order as to costs.
.............................J.
(DR DHANANJAYA Y CHANDRACHUD)
.............................J.
(HEMANT GUPTA)
NEW DELHI
APRIL 15, 2019
8
ITEM NO.45 COURT NO.11 SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO.3938 OF 2019
(@ SLP(C) No.4305/2019)
THE DISTRICT COLLECTOR & ORS. APPELLANT(s)
VERSUS
SHAH ROOPRAJ & ORS. RESPONDENT(s)
Date : 15-04-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE HEMANT GUPTA
For Petitioner(s) Mr. K. Radhakrishnan, Sr. Adv.
Mr. P. Venkat Reddy, Adv.
Mr. Prashant Tyagi, Adv.
for M/S. Venkat Palwai Law Associates
For Respondent(s) Mr. Gaurav Mitra, Adv.
Mr. Sachin Midha, Adv.
Mr. Anand Mishra, AOR
Mr. Amrendra Kumar Singh, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
No costs.
Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER
(Signed order is placed on the file)
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3938 OF 2019
(@ SLP(C) No.4305/2019)
THE DISTRICT COLLECTOR & ORS. APPELLANT(s)
VERSUS
SHAH ROOPRAJ & ORS. RESPONDENT(s)
O R D E R
Leave granted.
This appeal arises from a judgment and order of a
Single Judge of the High Court of Judicature at Hyderabad
dated 20 September 2018. In a petition under Article 227
of the Constitution, the High Court dismissed a challenge
to an order passed by the X th
Additional Chief Judge, in
the City Civil Court at Hyderabad on 2 November 2017
granting the prayer for interim relief pending the
disposal of the suit.
The suit scheduled property is situated at TS No.95,
Block C and Ward No.49 of Nampally Village and Nampally
Mandal with an extent of 2900 sq.m. According to the
appellants, it has been recorded in Column No.20 of the
Survey records, as land vested in the Public Works
Department. The then Collector, Hyderabad had in 1989
directed the Revenue Divisional Officer to issue site
pattas to certain slum dwellers who were residing in the
land. Accordingly, it appears that 129 house site pattas
2
were issued to eligible families.
On 19 September 2015, the Tehsildar Nampally Mandal
addressed a communication to the Station House Officer,
Begum Bazaar P.S., Hyderabad stating that the residents
of Surya Mahal Slum were being threatened by unknown land
grabbers, who were attempting to displace them.
The first respondent filed a Writ Petition before the
High Court, being WP 38327 of 2015, seeking protection
against alleged dispossession from an area of 1080 sq.
yards in Survey No. TS 95. The High Court passed an
interim direction on 25 November 2015 restraining
dispossession.
On 29 February 2016, the Tehsildar complained to the
Station House Officer, Begum Bazaar, Hyderabad about
illegal constructions in progress on the suit scheduled
property.
On 8 March 2016, FIR 84/2016 was registered on the
complaint of the Tehsildar.
The Tehsildar filed a counter affidavit in the Writ
proceedings submitting that in accordance with the
assignment policy of the State, the lands were not
alienable.
Another Writ Petition, being Writ Petition 8798 of
2017, was filed before the High Court in which an interim
direction was issued on 14 March 2017 restraining
eviction without following due process of law.
3
The present dispute arises out of OS 1197 of 2017
filed in the City Civil Court at Hyderabad for the grant
of a permanent injunction restraining the appellants from
interfering with the possession and enjoyment of the
respondent-plaintiffs over the suit property.
The Trial Court declined to grant an interim
injunction on 17 August 2017. The respondents filed an
appeal against the order declining an injunction. On 2
November 2017, the X th
Additional Chief Judge of the City
Civil Court allowed the appeal and restrained the
appellants from interfering with the peaceful possession
and enjoyment of the lands and construction activities of
the respondents. A Civil Revision filed by the
appellants was dismissed by the High Court on 20
September 2018. The High Court recorded that an
undertaking had been filed before it stating that
equities will not be claimed in respect of any
construction that may be carried out in the meantime, in
the suit. The High Court accepted the undertaking,
thereby allowing the construction activities to proceed.
This Court entertained the Special Leave Petition
filed against the order of the High Court on 15 February
2019 and, while issuing notice, stayed the operation of
the judgment of the High Court dated 20 September 2018.
Mr. K. Radhakrishnan, learned senior counsel
appearing on behalf of the appellants submitted that the
land in question vests in the State. Pattas were granted
4
to slum dwellers in 1989. It has been submitted that
after a town survey of Nampally Village was conducted
under the provisions of the Andhra Pradesh Survey and
Boundaries Act 1923, the land has been recorded as
government land by issuing a notification under Section
13(1). Moreover, it has been submitted that any
registration of the land in favour of a third party would
be contrary to the policy of the State as embodied in
GOMs 1406 of dated 25 July 1958, since under the
assignment policy, the assigned lands are only heritable,
but not alienable. A reference has been made to the
counter affidavit which has been filed before the City
Civil Court on behalf of the State by the Tehsildar, in
which it has been denied that the respondents were in
possession of the suit scheduled property. Moreover, it
has been submitted that a person by the name of Mangal G
who is alleged to have sold the suit property to the
husband of one of the plaintiffs did not possess any
right, title or interest and, hence, the plaintiffs have
absolutely no claim of title or ownership to the
property.
On the other hand, learned counsel appearing on
behalf of the respondents, urged that the High Court had
duly considered the material which had been produced on
record by the respondents to establish their possession
to the land. The respondents contend that they had
acquired the land under registered gift deeds in April
5
2015 from the above mentioned person by the name of
Mangal G. Moreover, it was submitted that under the
terms governing the original pattas, there was no
prohibition on the alienation of the lands after a period
of ten years.
Having heard learned counsel appearing on behalf of
the appellants and the respondents, we are of the view
that the defence which has been raised on behalf of the
appellants raises a serious triable issue. According to
the State, the title of the land in question vests in it.
Pattas were granted in 1989 to the slum dwellers. It has
been urged that an effort is being made by land grabbers
to displace the slum dwellers and to erect construction
on land, which is impermissible.
We are of the view that there is a serious dispute in
the present case in regard to the claim of ownership
which is made on behalf of the respondent � plaintiffs.
As the High Court noted, in the course of its order, the
claim of the respondents is that their donor had
purchased the lands under a registered sale deed in April
2015 after which gift deeds were executed in favour of
the respondents. The tenability of this claim will
require adjudication in the suit. The State has claimed
title and ownership to this land. In this background, we
are of the view that the High Court ought not to have
allowed construction to proceed on the land. Allowing
construction is liable to change the nature and character
6
of the land. Merely recording an undertaking that the
construction will not create equities, will not
sufficiently protect the interest of the State in a
situation, as present.
For the above reasons, we are of the view that the
grant of an injunction by the first Appellate Court and,
as affirmed by the High Court, does not meet the
parameters laid down under settled principles of law. It
is not possible at this stage to come to a conclusion
that the respondents have established a prima facie case
or that the requirements of balance of convenience and
irreparable prejudice have been met by the original
plaintiffs.
We accordingly set aside the impugned judgment and
order of the High Court. We accordingly restore the
order passed by the trial judge dismissing the
application for interim injunction.
We clarify that our observations, as indicated above,
are for the limited purpose of deciding the application
for interim injunction under Order XXXIX Rules 1 and 2 of
the Code of Civil Procedure, 1908 and shall not come in
the way of disposal of the suit.
The appeal is allowed in the above terms. There
7
shall be no order as to costs.
.............................J.
(DR DHANANJAYA Y CHANDRACHUD)
.............................J.
(HEMANT GUPTA)
NEW DELHI
APRIL 15, 2019
8
ITEM NO.45 COURT NO.11 SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO.3938 OF 2019
(@ SLP(C) No.4305/2019)
THE DISTRICT COLLECTOR & ORS. APPELLANT(s)
VERSUS
SHAH ROOPRAJ & ORS. RESPONDENT(s)
Date : 15-04-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE HEMANT GUPTA
For Petitioner(s) Mr. K. Radhakrishnan, Sr. Adv.
Mr. P. Venkat Reddy, Adv.
Mr. Prashant Tyagi, Adv.
for M/S. Venkat Palwai Law Associates
For Respondent(s) Mr. Gaurav Mitra, Adv.
Mr. Sachin Midha, Adv.
Mr. Anand Mishra, AOR
Mr. Amrendra Kumar Singh, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
No costs.
Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER
(Signed order is placed on the file)
