HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 8639 of 2009 DATED 15TH OCTOBER, 2014.
BETWEEN Bheemreddy Yella Reddy ….Petitioner And Director of Mines & Geology, Hyderabad and ors …Respondents.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 8639 of 2009
ORDER:
Heard the learned Counsel for the petitioner, learned Government Pleader for Respondents 1 to 3 and learned Counsel for Respondent No. 7.
The petitioner and Respondents 4 & 5 owns an extent of Ac.8.21 guntas in Sy.No.246 of Mallakpally village, Dharmasagar Mandal, Warangal District. The said property was a joint family property. A portion of the said property is covered by big boulders of black granite. The petitioner had instituted suit in O.S.No.28 of 2007 on the file of the learned II Additional District Judge, Warangal for partition of the joint family property by arraying Respondents 4 to 6 herein as parties to the said suit. A preliminary decree in the said suit was passed on 31.03.2008 holding that the sixth respondent herein is entitled to 1/3rd share in the suit schedule property.
The 6th respondent executed registered sale deed on 5.3.2007 in favour of the seventh respondent in respect of land to an extent of Ac.3.21 Gts situate in Sy.No.246 of Mallakpally village. He also executed a registered sale deed in favour one C.S. Abhilas for the remaining land of Ac.5.00 cents pending disposal of the suit. The seventh respondent, based on the registered sale deed submitted an application to the second respondent for grant of quarry lease under Rule 12(5) of the A.P. Minor Mineral Concession Rules, 1966 and the petitioner filed an objection petition on 16.5.2008 before the second respondent stating that lease cannot be granted in favour of the seventh respondent without his consent as the property is a joint family property and no final decree is passed in the partition suit. Though the objection petition was acknowledged by the second respondent, no orders were passed on the same. The petitioner got issued a legal notice on 4.8.2008 to the first respondent stating that the land in question is a joint family property and no lease can be granted without consent of other sharers. However, the second respondent recommended the case of the seventh respondent to the first respondent for grant of quarry lease and accordingly the first respondent passed orders on 12.12.2008 granting quarry lease in Sy.No.246 of Mallakapally village in favour of the seventh respondent for a period of twenty years. The third respondent issued No Objection Certificate in respect of the said land. Challenging the action of respondents 1 to 3 in granting quarry lease in favour of the seventh respondent over the land in Sy.No.246, the present Writ Petition was filed.
The second respondent filed a counter affidavit stating that the seventh respondent submitted an application for grant of quarry lease in Sy.No.246 of Mallakpally village on 23.01.2008 along with other requisite documents. The petitioner submitted an objection petition on 16.5.2008 seeking to reject the application filed by the seventh respondent. On 31.5.2008 the sixth respondent submitted a notarized affidavit stating that he sold away his share to the seventh respondent and that his brothers have no right or claims over the said land. In view of the objection petition dated 16.5.2008 submitted by the petitioner, the second respondent addressed the Tahsildar, Darmasagar Mandal on 19.6.2008 to review his letter issued on 25.02.2008 and submit a comprehensive report. The Tahsildar, Dharmasagar Mandal submitted reply on 30.06.2008 stating that the subject land was verified by the concerned Revenue Inspector and that the said land was purchased by the seventh respondent. The second respondent did not receive any copy of the decree supporting the claim of the petitioner till the disposal of the application of the seventh respondent on 25.08.2008. They have also obtained the opinion of the Government Pleader in the Court of the learned II Additional District Judge, Warangal wherein it was observed that the subject land in Sy.No.246 of Mallakpally village does not relate to the suit schedule property and that the lease granted in favour of the seventh respondent is valid.
In view of the rival contentions, this Court perused the schedule property in O.S.No.28 of 2007. The suit schedule property consists of three items; first item relates to the land situate in Mallakaplly village, second item relates to the land situate in Madikonda village and third item relates to the land situate in Rampur village. The property mentioned in respect of Mallakpally village does not relate to the land in Sy.No.246 of Mallakapally village. Hence, prima facie the opinion expressed by the Government Pleader appears to be correct. But the learned Counsel for the petitioner submits that the subject land is mentioned under ‘Khatha’ number, but not under survey number. He submits that the petitioner filed I.A.No.1147 of 2010 seeking amendment of Item No.1 of the suit schedule property and the same was allowed by order dated 18.11.2010 wherein the land admeasuring Ac.8.21 guntas was mentioned in ‘Khatha’ No. 592 which is correspond to Sy.No.246 of Mallakaplly village. Be that as it may, no documentary evidence was placed before respondents 1 and 2 herein at the time of granting lease in favour of the seventh respondent and the quarry lease was granted to the seventh respondent based on the material available on record at that point of time. However, it is to be seen that a preliminary decree was passed in the said suit on 31.03.2008 and final decree is yet to be passed. The petitioner claims 1/3rd share of entire joint family property and the subject property in Sy.No.246 is one of the items in the said joint family property. In the circumstances, the petitioner can take appropriate steps in accordance with law in the pending suit, O.S.No.28 of 2007 and seek appropriate relief at the time of passing final decree.
Subject to the above observations, the Writ Petition is disposed of. Miscellaneous petitions pending consideration if any in the Writ Petition shall stand closed. No costs.
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JUSTICE A. RAMALINGESWARA RAO DATED 15TH OCTOBER, 2014.
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