Smt V Lakshmi Rajyam

O.S.No.125/2014

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :BOBBILI

Present: Smt.V.Lakshmi Rajyam,

Principal Junior Civil Judge, Bobbili

Wednesday, the 3rd day of May, 2017

O.S.No.24/2014

Between: M/s Sree Aditya Geethika Ferro Alloys Pvt. Ltd., Registered company under the Indian Companies Act having its registered office at Kakinada, represented by its Director cum Authorised person Sri Padala Srinivasa Reddy.

.....Plaintiff.

And:

1) The Zonal Manager, Andhra Pradesh Industrial Infrastructure Corporation Limited, Industrial Estate, Visakhapatnam.

2) The Manager, Andhra Pradesh Industrial Infrastructure Corporation Limited, Industrial Growth Centre, Bobbili, Vizianagaram District.

....Defendants.

This suit came up on 3.4.2017 before me for final hearing in the presence of Sri.P.M.Sai, Advocate for the plaintiff and Sri. K.Prasada Rao, Advocate for the defendants and having stood over for consideration till today, this court delivered the following:

J U D G E M E N T

The plaintiff herein filed this suit for declaration that the

Cancellation- cum-resumption notice dated 4.2.2014 issued by the 1st defendant is illegal, arbitrary and capricious and not binding on the plaintiff in respect of the plaint schedule land and for consequential relief of permanent injunction restraining the defendants, their men, agents and assignees from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property until he is evicted by due process of law and for costs of the suit.

2.Brief averments of the plaint:

The plaintiff is a registered company under the Indian Companies

Act, 1956 having its registered office at Kakinada, Andhra Pradesh State and the present is filed on behalf of the company by one Padala

Srinivasa Reddy who is the Director cum authorized person to file this

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suit. The extract of the Minutes book and the authorization letter is filed along with the plaint to show the same. The defendants are registered company under Companies Act having its registered office at

Hyderabad and various Zonal offices in entire State and their intention is to acquire lands from various sectors and develop the same by laying roads, drains Infrastructure and water facility etc., in the industrial areas and to sell the same for the purpose of establishing industries. The defendants in order to develop the area in Bobbili Region, laid some plots in Industrial growth centre, Bobbili. The plaintiff purchased the plot

No.211 of the said Industrial growth centre, Bobbili which is shown in the plaint schedule. The plaintiff purchased the said plaint schedule property from the defendants for a sum of Rs.62,40,000/- with view to set up a unit for the manufacture of Ferro Alloys etc. The plaintiff and the 1st defendant entered into an agreement of sale dated 14.11.2008 and the same was registered as document No.3981/2008 in the Sub-

Registrar Office, Bobbili on 22.11.2008 and the defendants had handed over the vacant possession of the plaint schedule land to the plaintiff on 22.11.2008 itself. At the time of registering the agreement of sale, the defendants have assured to lay the road and drain and develop like anything. Believing the version of the defendants, the plaintiff paid entire sale consideration and obtained physical possession of the plaint schedule land. The plaintiff, in pursuance of the agreement of sale and possession of the plaint schedule property, applied for clearance certificate from various departments to establish a unit in the plaint schedule property and also obtained environmental clearance certificate from A.P. Pollution Control Board vide its order bearing

No.226/PCB/CFE/RO-VZM/HO/2010 dt.206.2011. The plaintiff company published in daily newspaper also. Thereafter the plaintiff's company

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came to know that the defendant company is not cooperating with the electrical department. The plaintiff contends that so far there is no high quality electricity supply in the locality and till today big industries have not been established due to non providing of infrastructure in the locality. The plaintiff approached the Electricity Department several times for providing power supply in the locality but they fail to do so.

The plaintiff contends that it came to know that the Electricity

Department is not in a position to provide electricity for the new establishments and due to non availability of the sufficient power in the entire State and the Electricity Department failed to provide power supply and as such so many old companies were closed due to non supply of electricity. The plaintiff further contends that in Plot No.210, unit was established two years back and they applied for power supply but so far the Electrical Department did not provide power supply to the said unit. It is further contended that the plaintiff came to know that there is temporary scarcity of supply of electricity and the government has to take appropriate steps to provide power supply to the industries.

The plaintiff contends that the defendants’ organization did not cooperate with the land owners in the Growth centre and not making pressure on the Electricity Department to provide uninterrupted power supply to the units. The plaintiff contends that the defendants’ organization has allotted nearly 400 acres of land to some companies in the year 2006-07 and expecting about the major industries will come to

Industrial growth centre, Bobbili, the plaintiff purchased the plaint schedule property for setting up Ferro Alloys industry and approached the bank for financial aid to the said industry. The bank people assured that if major industries come to growth centre, the small industries will be benefited and further assured to give financial aid to the industry but

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so far no major industry has come up. So the bank people have not considered about financial aid to the plaintiff and application is still pending with the bank. The plaintiff further contends that at the time of sale, the defendants assured that they will lay roads, drains provide water supply and power supply in the areas, but the defendants failed to do so for the reasons best known to them. The plaintiff contends that he is ready and willing to complete his project work if the defendants provide road, drains, water and power supply in the locality. He further contended that the defendants' company without providing amenities quite contrary to the assurances and understandings given by them, illegally issued show cause notice dated 8.8.2012 in respect of the plaint schedule property and the plaintiff's company also issued a reply cum representation letter dt.25.8.2012 and also requested the defendants to cooperate with the plaintiff's company but there after there is no response from the defendants. The plaintiff's company approached the defendants to consider his request, but the defendants while assuring him that they will consider his request and forward the same to the

Higher authorities, did not do so.

(a) The plaintiff further contended that while he was acquiring license one by one from the concerned authorities, he could not get power supply to run the unit and the defendant's company did not establish the total infrastructure facility and did not provide water sources to the industry and in turn the 1st defendant issued registered

Cancellation-cum-resumption notice dated 4.2.2014 with all false and untenable allegations in respect of the plaint schedule property and the defendants requested to surrender the said plot within 15 days from the date of receipt of cancellation order in any case on or before 20.2.2014.

The said notice was posted on 19.2.2014 as per postal endorsement and

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it was served to the plaintiff on 21.2.2014 and as such the defendants’ company have acted illegally and violated the terms and conditions of the understandings and agreements. The plaintiff contends that the said notice dated 4.2.2014 is illegal, arbitrary, capricious and against the natural justice. The plaintiff contends that as he requested the 1st defendant to grant considerable time for establishing industry on several occasions, as there are latches on the part of the defendants in providing infrastructure and other facilities in the area as assured by the defendants’ company. He contends that the defendants have to take steps under the process of law by filing suit and they cannot take law into their hands. He contended that he paid entire sale consideration and no amount is due to the defendants’ company by the plaintiff but the defendants’ company failed to provide minimum infrastructure in the locality to establish the industry and further the defendants’ company is not cooperating with the plaintiff to get electricity and water supply in the area. Further the defendants are threatening the plaintiff that they will recover the possession of the plaint schedule land high handedly and illegally from the plaintiff company. Hence he filed this suit for declaration that the cancellation-cum-resumption notice dated 4.2.2014 is arbitrary, capricious, illegal and against the natural justice and for consequential relief of permanent injunction restraining the defendants, their men, agents etc., from ever interfering with the possession of the plaintiff in respect of the plaint schedule land until he is evicted by due process of law.

3.On receipt of notices, the defendants made their appearance and

Sri K.Prasada Rao, Advocate filed Vakalatnama on behalf of the defendants. The 1st defendant filed detailed written statement and the same was adopted by the 2nd defendant by filing memo. In such written

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statement the 1st defendant has denied all the allegations made in the plaint. The defendants contended that the plaintiff had submitted an application for allotment of site for establishment of industry and accordingly he got the site for cheaper rate and also executed registered agreement dated 22.11.2008. He contended that as per the agreement of the sale, the plaintiff has to start construction within 6 months from the taking possession of the plaint schedule property. He contended that the plaintiff had taken delivery of the plaint schedule property on 22.11.2008. He contended that as per clause (8) (c) of the

Registered Agreement of sale, the plaintiff had to complete the establishment of industry within two years from the taking of possession of the site and to start business and as per the sale agreement, extension of 2 years time is permissible but that time also elapsed. He contended that total 4 years have elapsed but the plaintiff has not at all started any activity in the plaint schedule land and the plaintiff has not started even building/shed for running the industry and the same was found as vacant site during the course of inspection made by the 2nd defendant and his officials. He contended that they got issued show-cause notice dated 8.8.2012 to the plaintiff for cancellation of allotment of site as the plaintiff did not start industry as per terms of the sale agreement for which the plaintiff issued reply with untenable allegations. He contended that they were not satisfied with the reply of the plaintiff, they issued proceedings for cancellation of the allotment of site i.e., plaint schedule property and ordering for resumption. He contended that the plaintiff grossly violated the conditions of the sale agreement even though they provided all amenities to the plaintiff and he failed to start industry/factory work even though 4 years have elapsed, they issued cancellation of allotment of site proceedings. They

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contended that there are no merits in the suit and that the court fee paid is not correct. Hence they sought for dismissal of the suit with costs.

4.Basing on the pleadings of both parties the following issues were settled for trial:

1. Whether the suit agreement of sale dt.14.11.2008 executed between the plaintiff and the 1 st defendant is true, valid and binding on the defendants or not?

2. Whether the plaintiff have got possession and enjoyment over the suit schedule property or not?

3. Whether the plaintiff is entitled for the relief of declaration, declaring that the cancellation-cum- resumption notice dt.4.2.2014 is illegal, arbitrary, capricious and not binding on the plaintiff or not?

4. Whether the plaintiff is entitled for grant of consequential relief of permanent injunction restraining the defendants, their men, agents and assignees from ever interfering with the peaceful possession and enjoyment of the plaintiff with the suit schedule property until he is evicted by due process of law or not?

5. To what relief?

5.During the course of trial, the plaintiff-Padala Srinivasa Reddy got examined himself as PW-1 and got marked the True copy of

Incorporation Certificate issued in the name of plaintiff company as

Ex.A-1, Certified copy of the registered agreement of sale dt.14.11..2008 executed between PW-1 and D-1 as Ex.A-2, the original possession certificate dt.22.11.2008 issued by the 1st defendant to the plaintiff as Ex.A-3, the show cause notice dated 8.8.2012 issued by the 1st defendant to the plaintiff company as Ex.A-4, the Office copy of reply notice dated 25.8.2012 issued by PW-1 to D-1 as Ex.A-5, the True copy of consent order dated 20.6.2011 issued by the A.P. Pollution Control

Board, Vizianagaram in favour of the plaintiff as Ex.A-6, the True copy of certificate dated 18.8.2012 issued by the Andhra Bank, Steel Plant

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Township Branch, Visakhapatnam in favour of the plaintiff company as

Ex.A-7, the Original cancellation cum resumption notice dated 4.2..2014 issued by D-1 to PW-1 as Ex.A8, the Extract of the Minutes book pertaining to the plaintiff company as Ex.A-9 and the authorization letter issued in the name of PW-1 by the then Managing Director of Plaintiff company as Ex.A-10.

6.After completion of the plaintiff’s side evidence, initially the defendants have examined one Patagarla Madana Mohan who is working as Branch Manager, APIIC, Bobbili as DW-1 and through him

Ex.B-1 to Ex.B-5 were marked. However, there after as DW-1 was reportedly transferred to some other place, his evidence was eschewed.

Thereafter the defendants have examined one M.V.Karunakar, the present Branch Manager of APIIC, Bobbili as DW-2 and through him again the same documents were marked as Ex.B-1 to Ex.B-5.

7. Heard arguments of both sides and perused the record.

8.ISSUES NO. 1 and 3 1.Whether the suit agreement of sale dt.14.11.2008

executed between the plaintiff and the 1 st defendant is true,

valid and binding on the defendants or not?

3.Whether the plaintiff is entitled for the relief of

declaration, declaring that the cancellation cum resumption

notice dt.4.2.2014 is illegal, arbitrary, capricious and not

binding on the plaintiff or not?

9.For the sake of brevity and for avoiding repetition, issues 1 and 3 are dealt in jointly. To prove the above said issues, the plaintiff– Padala

Srinivasa Reddy got examined as PW-1. He filed his chief affidavit in lieu of his examination in chief which is nothing but a reiteration of the contents of the plaint. In such evidence, PW-1 deposed that the plaintiff

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company is a registered company under the Indian Companies Act, 1956 having its registered office at Kakinada, Andhra Pradesh State and the present is filed on behalf of the company by him as the Director cum authorized person and that the extract of the minutes book (Ex.A-9) and the authorization letter (Ex.A-10) is filed along with the plaint to show the same. He deposed that the defendants are registered company under companies Act having its registered office at Hyderabad and various Zonal offices in entire State and their intention is to acquire lands from various sectors and develop the same by laying roads, drains

Infrastructure and water facility etc., in the industrial areas and to sell the same for the purpose of establishing industries. He deposed that the defendants in order to develop the area in Bobbili region, laid some plots in Industrial growth centre, Bobbili. He deposed that he purchased the plot No.211 of the said Industrial growth centre, Bobbili which is shown in the plaint schedule for a sum of Rs.62,40,000/- with view to set up a unit for the manufacture of Ferro Alloys etc. He deposed that he and the 1st defendant entered into an agreement of sale dated 14.11.2008 (Ex.A-2) and the same was registered as document

No.3981/2008 in the Sub-Registrar Office, Bobbili on 22.11.2008 and the defendants had handed over the vacant possession of the plaint schedule land to the plaintiff on 22.11.2008 itself. He deposed that at the time of registering the agreement of sale, the defendants have assured to lay the road and drain and develop like anything. Believing the version of the defendants, he paid entire sale consideration and obtained physical possession of the plaint schedule land. He deposed that in pursuance of the agreement of sale and possession of the plaint schedule property, he applied for clearance certificate from various departments to establish a unit in the plaint schedule property and also

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obtained environmental clearance certificate from A.P. Pollution Control

Board vide its order bearing No.226/PCB/CFE/RO-VZM/HO/2010 dt.206.2011. (Ex.A-6). He deposed that his company published in daily newspaper also. He deposed that thereafter the plaintiff's company came to know that the defendant company is not cooperating with the electrical department. He deposed that so far there is no high quality electricity supply in the locality and till today big industries have not been established due to non providing of infrastructure in the locality.

He deposed that he approached the Electricity Department several times for providing power supply in the locality but they fail to do so. He deposed that it came to know that the electricity department is not in a position to provide electricity for the new establishments and due to non availability of the sufficient power in the entire State and the electricity department failed to provide power supply and as such so many old companies were closed due to non supply of electricity. He deposed that in Plot No.210, a unit was established two years back and they applied for power supply but so far the Electrical department did not provide power supply to the said unit. He deposed that he came to know that there is temporary scarcity of supply of electricity and the government has to take appropriate steps to provide power supply to the industries. He deposed that the defendant's organization did not cooperate with the land owners in the Growth centre and not making pressure on the Electricity Department to provide uninterrupted power supply to the units.

10. He deposed that the defendants’ organization has allotted nearly 400 acres of land to some companies in the year 2006-07 and expecting about the major industries will come to Industrial growth centre, Bobbili, his company purchased the plaint schedule property for setting up Ferro

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Alloys industry and approached the bank for financial aid to the said industry and the bank people assured that if major industries come to growth centre, the small industries will be benefited and further assured to give financial aid to the industry but so far no major industry has come up. He deposed that so the bank people have not considered about financial aid to the plaintiff's company and application is still pending with the bank. He deposed that at the time of sale, the defendants assured that they will lay roads, drains provide water supply and power supply in the areas, but the defendants failed to do so for the reasons best known to them. He deposed that he is ready and willing to complete his project work if the defendants provide road, drains, water and power supply in the locality.

11.He further deposed that the defendants' company without providing amenities quite contrary to the assurances and understandings given by them, illegally issued show cause notice dated 8.8.2012 (Ex.A-4) in respect of the plaint schedule property and the plaintiff's company also issued a reply cum representation letter dt.25.8.2012 (Ex.A-5) and also requested the defendants to cooperate with the plaintiff's company but there after there is no response from the defendants. He deposed that the plaintiff's company approached the defendants to consider his request but the defendants while assuring him that they will consider his request and forward the same to the

Higher authorities, did not do so.

12.He deposed that while he was acquiring license one by one from the concerned authorities, he could not get power supply to run the unit and the defendant's company did not establish the total infrastructure facility and did not provide water sources to the industry and in turn the

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1st defendant issued registered Cancellation-cum-resumption notice

dated 4.2.2014 (Ex.A-8) with all false and untenable allegations in

respect of the plaint schedule property and the defendants requested to surrender the said plot within 15 days from the date of receipt of cancellation order in any case on or before 20.2.2014. The said notice was posted on 19.2.2014 as per postal endorsement and it was served to the plaintiff on 21.2.2014 and as such the defendants’ company have acted illegally and violated the terms and conditions of the understandings and agreements. He deposed that the said notice dated 4.2.2014 (Ex.A-8) is illegal, arbitrary, capricious and against the natural justice. He deposed that he requested the 1st defendant to grant considerable time for establishing industry on several occasions, as there are latches on the part of the defendants in providing infrastructure and other facilities in the area as assured by the defendants’ company. He deposed that the defendants have to take steps under the process of law by filing suit and they cannot take law into their hands. He deposed that he paid entire sale consideration and no amount is due to the defendants’ company by the plaintiff-company but the defendants’ company failed to provide minimum infrastructure in the locality to establish the industry and further the defendants’ company is not cooperating with the plaintiff company to get electricity and water supply in the area. He deposed that further the defendants are threatening the plaintiff that they will recover the possession of the plaint schedule land high handedly and illegally from the plaintiff company. Hence he filed this suit for declaration that the cancellation- cum-resumption notice dated 4.2.2014 (Ex.A-8) is arbitrary, capricious, illegal and against the natural justice and for consequential relief of permanent injunction restraining the defendants, their men, agents etc.,

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from ever interfering with the possession of the plaintiff company in respect of the plaint schedule land until he is evicted by due process of law.

13.To prove his contention, the plaintiff had filed Ex.A-1 to Ex.A-10 as noted in the appendix of evidence.

14.As noted above after closure of plaintiff’s side evidence, the defendants have examined one Patagarla Madana Mohan, the then

Branch Manager of APIIC as DW-1. In fact DW-1 was examined in chief and through him Ex.B-1 to Ex.B-5 were marked. However, there after as

DW-1 was reportedly transferred to some other place, his evidence was eschewed. Thereafter the defendants have examined one

M.V.Karunakar, the present Branch Manager of APIIC, Bobbili as DW-2 and through him again the same documents were marked as Ex.B-1 to

Ex.B-5.

15.DW-2 filed his chief affidavit in lieu of his examination in chief. In such evidence he reiterated the contents of the written statement of the defendants. He deposed that he is the 2nd defendant in the above suit.

He deposed that the State government has established the growth

Centre at Bobbili with a view to develop this area industrially and financially as this area is a backward area and in order to develop the industries, the Government acquired nearly 800 acres and named the same Industrial growth centre and to encourage the industrial growth centre and industries, the government had given the sites for separate rates and also provided other amenities like water, electricity etc. for establishment of industries in the growth centre by spending crores of public money. He deposed that the plaintiff submitted an application for allotment of site for establishment of industry for cheaper rate and also

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executed registered agreement dated 14.11.2008 (Ex.A-2). He deposed that as per the agreement of the sale, the plaintiff has to start construction within 6 months from the taking of possession of the plaint schedule property and the plaintiff has taken delivery of the plaint schedule property as on the date of registration of Ex.A-2 I.e.. on 22.11.2008 as found in Ex.A-3-Possession certificate. He deposed that as per clause (8) (c) of the Registered Agreement of sale, the plaintiff had to complete the establishment of industry within two years from the taking possession of the site and to start business and as per the sale agreement, extension of 2 years time is permissible and that time is also elapsed, totally 4 years have elapsed, but the plaintiff has not at all started any activity in the plaint schedule land. He deposed that they have got issued notices to the plaintiff, but the plaintiff did not start even the building/sheds for running the industry and the same is found as vacant site during the course of inspection made by him and his officials. He deposed that they got issued show cause notice dated 8.8.2012 to the plaintiff for cancellation of allotment of site as plaintiff has not started industry as per terms of the sale agreement for which the plaintiff issued reply with untenable allegations and they have not been satisfied with the reply and as such they issued proceedings for cancellation of the allotment of site i.e., plaint schedule property and ordered for resumption. He deposed that the plaintiff failed to obtain electricity connection and water supply connection even though they provided the same. He deposed that as the plaintiff grossly violated the conditions of the sale agreement even though he provided all amenities to the plaintiff, the plaintiff failed to start industry/factory work even though 4 years have elapsed, they issued cancellation of allotment of

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site proceedings vide Ex.A-8. He deposed that there is no merits in the suit and that the court fee paid is not correct.

16.Considering the entire evidence of both parties and Ex.A-1 to

Ex.A-10 and

Ex.B-1 to Ex.B-5, the admitted facts are as follows:

i)That the defendants are owners of the suit schedule property; ii)That the 1st defendant entered into an agreement of sale

dated 14.11.2008 (Ex.A-2) with the plaintiff and got

registered the same with Sub-Registrar office, Bobbili vide document No.3981/2008 dt.22.11.2008.

iii)That the plaintiff purchased the suit schedule property from the defendants for a sum of Rs.62,40,000/- with a view to set up unit for the manufacture of Ferro Alloys Ltd., etc. and took possession of the same on the date of registration of the agreement of sale; iv)That the defendants have issued Ex.A.8-Cancellation cum

Resumption notice dated 4.2.2014 to the plaintiff by cancelling the allocation of plaint schedule property in favour of the plaintiff.

17.Considering the above admitted facts, the plaintiff had filed registered agreement of sale dated 14.11.2008(Ex.A2) which shows that the plaintiff had entered into an agreement with the 1st defendant for allotment of plaint schedule property in his favour for the purpose of establishing industry for manufacture of Ferro Alloys etc.

18.A perusal of Ex.A-2 clearly shows that the plaintiff had paid entire sale consideration of Rs.62,40,000/- to the 1st defendant at the time of execution of Ex.A-2 itself. Ex.A-2 further shows that the plaintiff has to start construction of factory building within six months after he being

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put in possession of the same after clearing necessary clearances from the competent authorities like Building Plan approval, filing of application with the A.P. Transco .and other permission/clearances etc.

19.A perusal of Ex.A.2- clause (8) (c) shows that the plaintiff i.e., the party of the second part shall go into commercial production duly erecting machinery and obtaining regular power supply connection with

TWO years of being put in possession of the allotted plot/land. It is further mentioned in the clause (8) (c) of Ex.A-2 that any extension of time, if considered, will be subject of levying of penalty at 10% on the land cost at the prevailing rates. No extension for more than 2 years can be entertained.

20.As per clause (8) (o) of Ex.A-2, “if the party of the Second part commits breach of the covenants herein contained, the allotment stands cancelled and this agreement shall stand determined without any notice thereupon the Party of the Second part will be treated as an encroacher and a trespasser who will have no right whatsoever in the schedule property under these present and it shall be lawful for the party of the First Part to re-enter upon the said land and resume possession thereof and also of the buildings standing thereon, the transfer made in favour of the Party of the Second Part under these presents shall become null and void and all rights of the Party of the

Second Part in the schedule property under this agreement and any building thereon shall at once cease and determine….. ….. …. “

21.Hence a perusal of Ex.A-2 more particularly clause (8) (c) and (o) clearly shows that the plaintiff has to start construction of building in the allotted site within six months from the date of being in possession of the said building/land and he has to commence business within two

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years of being put in possession of the allotted building/land. Clause (8)

(o) of Ex.A-2 clearly shows that if the plaintiff commits any breach of covenants mentioned in Ex.A-2, allotment stands cancelled and the agreement shall stand determined without any notice to the plaintiff and the plaintiff will be treated as encroacher and trespasser who will not right over the plaint schedule property. Hence considering the Ex.A- 2 clause (8) (c) it is clear that construction of building/shed must be made within six months of handing over the possession to the plaintiff and the commencement of the business must be done within two years from thereon. However, in the instant case, PW-1 during his cross examination admitted that he had not started construction of any business in the said premises as stipulated in Ex.A-2 Agreement. He deposed that he had submitted an application seeking time for establishment industry only once and that the said application was submitted before expiry of six months from the date of Ex.A-2. He deposed that he submitted the said application in the year 2009. He admitted that growth centre had conceded to his request to grant time for construction of industry but he did not start any industry even then also. The plaintiff contended and when examined as PW-1 deposed that he could not construct any building or start business in the allotted site due to the lack of infrastructure. He deposed that at the time of agreement of sale, the 1st defendant had assured that he will provide drain, electricity supply, road etc, but they did not do so. In fact, PW-1 during his cross examination voluntarily deposed that as there was no proper infrastructure like road, water supply and power supply, he could not establish any industry. The defendant denied the fact that they have not provided any infrastructure as assured by them. PW-1 during his evidence deposed that he had obtained clearances one by one from

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various department i.e., A.P. Pollution Control Board as found in Ex.A-6 etc. and that he came to know that the defendant company is not cooperating with the Electricity Department. He deposed that there is no high quality electricity supply in the locality and that big industries were not established due to non providing of infrastructure in the locality. He deposed that he approached the Electricity Department for providing power supply in the locality but they failed to do so. He deposed that the defendants did not cooperate with the land owners of growth centre and did not pressurize Electricity Department to provide uninterrupted power supply to the units.

22.DW-2 deposed that even though they have provided infrastructure, the plaintiff failed to start any industry as per the terms of the sale agreement and as such they have issued show-cause notice on 8.8.2012 vide Ex.A-4 to the plaintiff for cancellation of allotted site to the plaintiff but the plaintiff issued reply notice with fall false averments and as they were not satisfied with the said reply, they issued proceedings for cancellation of allotment of plaint schedule property vide Ex.A-8. DW-2 deposed that the plaintiff failed to obtain electricity and water supply connections even though they provided the same.

23.Hence considering the above evidence of PW-1 and DW-2, it is clear that only dispute between both the parties is that while PW-1 contends that due to lack of infrastructure assured by the defendants, he could not establish any industry in the allotted site, the defendants denied the same and contended that even though they provided infrastructure like water supply, lighting, roads etc., the plaintiff failed to establish industry within stipulated time. Admittedly as per the evidence of PW-1, it is clear that the plaintiff had not started the

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construction of any building/shed and did not start any industry within 2 years from the date of agreement of sale (Ex.A-2). Further, even though the 1st defendant had granted two years time, even though 4 years have elapsed, the plaintiff failed to complete project work. PW-1 during his evidence deposed that the defendants did not provide any amenities as assured by them. However he deposed that he is ready and willing to complete the work if the defendants provide road, drain and water and power supply in the locality. Hence the above evidence of PW-1 shows that PW-1 did not start construction or start the industry within 4 years of execution of Ex.A-2. However, he deposed that he has already constructed boundary wall and room level but there is no electricity supply and as such he could not start industry. He admitted that as per

Ex.A-2 Sale agreement if the industry is not started within six months from the date of agreement, D-1 can take back purchased suit land from them. He further admitted that after waiting for two years from 2010 the 1st defendant issued resumption notice to him. He admitted that D- 1 had issued about four notices demanding him to start the industry in the purchased site.

24.Considering the above, the evidence of PW-1 shows that as per version of the plaintiff, he could not start industry due to lack of infrastructure only. PW-1 deposed that he had constructed boundary wall and room level but as there is no electrical supply he cannot start industry. The defendants more particularly DW-2 denied the same and deposed that they have provided infrastructure. He admitted that he had provided high tension wire for the purpose of power supply to the industry. However, he denied the suggestion of the plaintiff that he did not run HT line to the plaintiff company with the period of 2 years after the sale agreement with the plaintiff and even till today. He voluntarily

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deposed that they will provide the site to the APEPDCL for establishing sub-station and that it is for the electrical department to erect sub- station. He deposed that their company is not personally running any

HT line or constructing any electrical poles in the plots given to the company.

25.Considering the above evidence of DW-1, it is clear that the defendants are not running any H.T line or constructing any electrical poles and that they will provide site to the APEPDCL for establishing sub-station and it is for the electrical department to erect sub-station.

PW-1 during his evidence deposed that after getting into possession of the suit schedule property, he had secured clearances from various departments and also environmental clearance certificate from A.P.

Pollution Control Board vide Ex.A-6 and that due to lack of power supply only, he could not start the industry. However, even though PW-1 deposed as above, that when he had applied to the electricity department for supply of electricity, the department informed that the defendants have not paid amount to lay high tension wires etc., the said evidence is contrary to the own pleadings of the plaintiff. Admittedly a perusal of Ex.A-4- Show cause notice dated 8.8.2012 shows that the 1st defendant issued the show cause notice to the plaintiff contending that as he plaintiff did not start construction of the building or carried out any industry within the stipulated time, the same is liable to be cancelled. Admittedly the plaintiff had issued reply notice vide Ex.A-5 dt.25.8.2012. Even though the plaintiff contended that he could not start the industry due to lack of electrical supply and other infrastructure by the defendant, the plaintiff did not choose to mention the same in the said reply notice (Ex.A-5). A perusal of Ex.A-5 shows that the plaintiff company sought time for setting up Ferro Alloys by the

Page 20 of 29

O.S.No.125/2014

end of November. Nowhere in Ex.A-5 there is any mention that due to lack of infrastructure by the defendants, the industry could not started.

Furthermore, in the plaint itself the plaintiff contends that he had applied for electrical supply with the electrical department and that

Electrical department could not provide the same as there was temporary scarcity of supply electricity. Hence the above pleadings of the plaintiff, itself shows that the electrical supply was not given to the plaintiff due to temporary scarcity but not due to the latches on the part of the defendants.

26.On the other hand, 2nd defendant filed Ex.B-4 which shows that the plaintiff had not paid the estimate charges within stipulated time due to which the electrical department has deleted the application of the plaintiff for power supply. Furthermore, Ex.B-5 i.e, letter dated 30.10.2015 issued by APEPDCL to the plaintiff shows that the plaintiff had applied for extension of HT supply for CMD of 6KVA and the electrical department had communicated that an amount of

Rs.2,26,85,630/- were to be paid as charges for service line charges, supervision charges/development charges initial consumption deposit and that as the charges were not paid so far, the application is liable for deletion. Hence the above facts more particularly Ex.B-4 and Ex.B-5 and the pleadings of the plaintiff clearly shows that the plaintiff had not paid the electrical power supply charges as communicated by the APEPDCL due to which his power supply was disconnected and application was deleted. Further more eventhough the plaintiff contends that the defendants did not supply water or electricity, the Ex.B1 to Ex.B3 show that the defendants are supplying water to the industries in the relevant period. Hence it is clear that there are no latches on the part of the defendants and that latches are on the part of the PW-1 only. Hence the

Page 21 of 29

O.S.No.125/2014

contention of the plaintiff that due to non providing of electrical supply by the defendants, he could not start the industry, is not correct in view of Ex.B-4 and Ex.B-5. If at all the plaintiff feels that he could not start the industry due to lack of infrastructure, he ought to have taken steps against the defendants immediately after the execution of Ex.A-2 but the plaintiff did not do so and kept quiet till 2012. No reason has been given by the plaintiff as to why he did not question the defendants for non providing of electrical power supply between 2008 and 2012. The above inaction of the plaintiff and Ex.B-4 and B-5 show that latches will be on the part of the plaintiff only but not on the defendants.

27.Furthermore, a perusal of Ex.A-2 registered agreement of sale

dated 1.3.2008 clause (8) © clearly shows that it is for the plaintiff who

has to start commercial production by duly erecting machinery and obtaining regular power supply connection within two years of being put in possession of the allotted plot/land. Hence as per section 8 (c) it is for the plaintiff to obtain regular power supply connection but in the instant case the plaintiff had not paid the estimate charges to the electrical department for extension of HT supply as found in Ex.B-4 ad

B-5 and in turn the plaintiff contends that the defendants have to provide power supply and that the latches are on the part of the defendants. Hence the above evidence of plaintiff and clause 8 © of the Agreement of sale dated 14.11.2008 clearly shows that latches are on the part of the plaintiff but not on the defendants.

28. Furthermore, the evidence of PW-1 shows that he is speaking falsehood. There are discrepancies between the pleadings of the plaintiff, the evidence of PW-1, Ex.A-4 and Ex.A-5 and Ex.B-4 and Ex.B-5 regarding the making of application by PW-1 to the electricity

Page 22 of 29

O.S.No.125/2014

department for supply of electrical connection etc. Hence it is clear that there are no latches on the part of the defendants and that latches are on the part of the PW-1 only. Hence considering the above evidence, as plaintiff did not start any industry or made any construction within two years from the date of execution of Ex.A-2 even though time was extended for a period of 2 years from 2010 and as the plaintiff did not construct anything or start industry even till today, it is clear that Ex.A- 8- Cancellation cum resumption notice is valid one but not illegal proceedings. The defendants have followed clause 8 (o) and issued

Ex.A-8 Cancellation-cum resumption notice dated 4.2.2014. As per said clause 8 (o) of the agreement of sale dated 14.11.2008 as plaintiff had committed breach some of the covenants i.e., clause 8 (c), agreement stands terminated and the defendants have liberty to resume possession of the plaint schedule property. Hence there is no illegality in issuing Ex.A-8-notice and as such the plaintiff is not entitled for the relief of declaration that Ex.A-8-notice dated 4.2.2014 is illegal, arbitrary, capricious and against the natural justice. Hence issue Nos. 1 and 3 are answered against the plaintiff and in favour of the defendants.

29.Coming to the issue No.2 and 4, admittedly, the plaintiff was put in possession of the plaint schedule property on the date of registration of Ex.A-2 as found in Ex.A-3-Possesion certificate dated 22.11.2008. In fact, the defendants are not denying the fact that the plaintiff was put in possession of the plaint schedule property on the date of execution of the Ex.A-3 and that he is in possession and enjoyment of the same even till date. DW-2 during his evidence admitted that since the date of handing over the possession to the plaintiff, the plaintiff is in possession and enjoyment of the suit schedule property. He voluntarily deposed that as the suit is pending possession was not taken back from the

Page 23 of 29

O.S.No.125/2014

plaintiff. Hence, possession of the plaintiff over the plaint schedule property is admitted fact. The learned counsel for the plaintiff contended that a person who is in settled possession of property is entitled to the relief of injunction irrespective of proving his title or not.

The learned counsel for the plaintiff relied upon the decision reported in 2012 (2) ALT 665 in the case of Mohd. Khasim and others Vs. Selection

Grade City Municipal Corporation, Warangal to substantiate his case.

The learned counsel for the plaintiff contended that the plaintiff is in possession of the plaint schedule property as found in Ex.A-3 and as such the defendant cannot evict him by cancelling the agreement without following the court of law i.e., by filing a suit for eviction.

Further it has been contended by the learned counsel for the plaintiff that a person obtaining possession of a property in part performance of an agreement of sale can defend his possession by filing a suit for injunction the law is now well settled having recourse to Section 53-A of

Transfer of Property Act and the decision reported in 2012 (3) ALT 142 in the case of Mettapalli Krishna Reddy V. Chemuru Raghava Reddy and others.

30.On the other hand, the learned counsel for the defendants contended that as Ex.A-2 was executed between both the parties and as the plaintiff had violated the terms of Ex.A-2, the defendants company have got liberty to cancel the agreement and to resume the possession of the plaint schedule property. To prove his contention the learned counsel for the defendants relied upon the decisions reported in 2013 (1) ALT 634 in the case of ECI Engineering and Construction Co., Ltd., rep. by its Director K.Venkat Phani Vs. Andhra Pradesh Industrial

Infrastructure Corporation Limited , rep. by its Deputy Zonal Manager (D) and others and 2013 (6) ALT 56 in the case of Sri Kiran Auto Service,

Page 24 of 29

O.S.No.125/2014

rep. by its Proprietor, Thungala Ramu and others Vs. Andhra Pradesh

Industrial Infrastructure Corporation Limited , rep. by its Deputy Zonal

Manager, Kakinada and others.

31.Considering the above contention of both learned counsels, even though admittedly the plaintiff is in possession of the suit schedule property, he cannot seek for permanent injunction. Admittedly, as per clause 8 (o) of agreement of sale dated 14.11.2008 as found in Ex.A-2 when the plaintiff commits breach of any of the covenants mentioned in agreement of sale, agreement stands cancelled and the plaintiff will be treated as encroacher and trespasser who will not have any right in the plaint schedule property. Admittedly, even though the plaintiff is in possession and enjoyment of the suit schedule property by the date of filing of the suit and even till today, the said clause 8 (o) and Ex.A-2, clearly shows that the plaintiff is treated as encroacher and trespasser who has no right over the plaint schedule property. In fact, as per clause (3) of the agreement to sell, it is mentioned that party of the second part (plaintiff herein) agrees and assure that they will not request for execution of the sale deed until project is implemented as detailed above. The party of the second part expressly agrees upon intimation of its eligibility for sale deed by the party of the First part, to take the Sale deed and take steps for registration of the same within one month of such intimation by the party of the first part.

32.In the instant case, it is clear that as the defendants have cancelled the agreement of sale by issuing cancellation cum resumption notice, no sale deed was executed. As per section 54 of Transfer of

Property Act, 1882 “A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled

Page 25 of 29

O.S.No.125/2014

between the parties. It is further mentioned in the section 54 of the said Act, that contract for sale of immovable property does not, of itself, create any interest or charge on such property.” In the instant case, there is no regular sale deed executed in favour of the plaintiff and agreement sale stands cancelled as seen from Ex.A-1-notice. Hence when no sale deed was executed in favour of plaintiff, it is presumed that the defendants are owners of the schedule mentioned property and as such even though the plaintiff is in possession and enjoyment of the suit schedule property, no injunction can be granted against the defendants as they are true owners of the schedule mentioned property.

33.Further in a recent decision reported in Meenugu Mallaiah and

others V. Ananthula Rajaiah and another decided on 9.9.2016

Second appeal No.383/2004 by Hon'ble Sri Justice

M.Satyanarayana Murthy., it has been held that:

“It is trite law that in a suit for declaration of title burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weaknesses-if any, of the case set up by …. would not be a ground to grant relief to the plaintiff.

In view of the principles laid down in the above judgments and applying in the principles laid down in Gurudwara Sahib V., Grampanchayat village Sirthala and another and Mohanalal (deceased) for L.Rs Kachru and Others V. Mirza Abdul Gaffar and another, the plaintiff is not entitled to claim declaratory relief which is equitable and discretionary one, on this ground also the plaintiff has to be non-suited for the relief of declaration of title to the property.

The plaintiff also claimed permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the property. Undisputedly father of the first defendant is the owner of the property, after his death the first defendant became the owner, from whom the other defendants purchased the property. Plaintiff did not seek relief of specific performance though he allegedly purchased the same under the unregistered sale deed but he filed the suit for declaration based on alleged unregistered sale deed and permanent injunction.

According to Section 41 (h) of the Specific Relief Act, when equally efficacious remedy is available to the plaintiff, the plaintiff is dis- entiied to claim permanent injunction. In the present facts of the case, equally efficacious remedy available to the plaintiff is to seek specific performance, in such case he is not entitled to claim permanent

Page 26 of 29

O.S.No.125/2014

injunction, apart from section 41 (h), when the plaintiff has no personal interest in the property in view of the bar u/sec.41 (j) of the Specific Relief Act, the plaintiff is not entitled to equitable relief of injunction.

Yet the other contention of the plaintiff is that he is in continuous possession and enjoyment of the property and thereby entitled to protection u/sec.53-A of the Transfer of Property Act. No doubt, if the plaintiff is in possession and enjoyment of the property being the purchaser under written agreement of sale subject to satisfying the other conditions to claim benefit u/sec.53-A of Transfer of Property Act, he is entitled to protect his possession by invoking section 53-A of Transfer of Property Act, but it cannot be used to claim permanent injunction. Moreover, the unregistered sale deed (in writing) was not produced by plaintiff to invoke protection u/sec.53-A of Transfer of Property Act. On other hand, it is settled law that no injunction can be granted against the true owner as held by the Apex Court in the Mahadeo Savlaram Shelke and others V. Puna Municipal Corporation and another. ….... In the said judgment when a question arose before the Apex Court that whether injunction could be granted aginst rightful owner in favour of person who remains in unlawful possession? The Apex Cout held that no injunction could be granted against true owner at the instance of the person, who is in wrongful possession. If the principle laid down in the Puna Municipal Corporation and another is applied to the present facts of the case, the plaintiff who is claiming possession against the true owner is not entitled to claim permanent injunction against the defendants. Therefore, the plaintiff is not entitled to claim permanent injunction against the defendants in view of the bar u/sec.41 (h) and (j) of Specific Relief Act., so also in view of the principle laid down by the Apex Court in the judgment referred supra. Accordingly the substanital question of law is answered”.

34.The ratio of the above decisions squarely applies to the instant case on hand. In the instant case, the plaintiff even though is in possession of the plaint schedule property, he cannot seek the relief of permanent injunction as the Ex.A-2 Agreement of sale was cancelled by the defendants and as no regular sale deed was executed in favour of the plaintiff. Furthermore this is not a suit for specific performance and as such the plaintiff cannot seek for permanent injunction as the defendants true owners of the plaint schedule property. Hence considering the above, the plaintiff is not entitled for the grant of permanent injunction also and as such issue No.2 is answered in favour of plaintiff while issue No.4 is answered against the plaintiff and in favour of the defendants.

Page 27 of 29

O.S.No.125/2014

35.Considering the findings to issues No.1 to 4, even though the issue No.2 is answered in favour of the plaintiff, issue Nos. 1 to 3 and 4 are answered against the plaintiff and in favour of the defendants and as such the plaintiff is not entitled for relief of declaration that Ex.A-2 notice is illegal, arbitrary, capricious and against the natural justice or for the grant of permanent injunction and as such the suit is liable to be dismissed.

36.In the result the suit is dismissed without costs.

Dictated to the Steno on Laptop, corrected and pronounced

by me in open court, this 3rd day of May, 2017.

Sd/- V.Lakshmi Rajyam,

Principal Junior Civil

Judge,

Bobbili.

Appendix of evidence

Witnesses examined

For Plaintiff: PW-1: Padala Srinivasa Reddy

For Defendants: DW-1: Patagarla Madhan Mohan (Eschewed) DW-2: M.V.Karunakar

Documents marked

For Plaintiff: Ex.A-1: True copy of incorporation certificate issued iln the name of plaintiff company Ex.A-2: Certified copy of the registered agreement of sale dt.14.11.2008 executed between PW-1 and D-1. Ex.A-3: Original possession certificate dt.22.11.2008 issued by D-1 to plaintiff company Ex.A-4: Show cause notice dt.8.8.2012 issued byD-1 to plaintiff company. Ex.A-5: Office copy of reply notice dated 25.8.2012 issued by PW-1 to Defendant. Ex.A-6: True copy of the consent order dt.20.6.2011 issued by A.P. Pollution Control Board, Vizianagaram in favour of plaintiff. Ex.A-7: True copy of the certificate dt.18.8.2012 issued by Andhra Bank, Sttel Plant township Branch,Visakhapatnam in favour of the plaintiff company. Ex.A-8: Original Cancellation cum resumption notice dt.4.2.2014 issued by D-1 to the plaintiff company. Ex.A-9: Extract of Minutes book pertaining to the plaintiff company.

Page 28 of 29

O.S.No.125/2014

Ex.A-10: Authorisation letter issued in the name of PW-1 by the then Managing Director of the plaintiff company.

For Defendants: Ex.B-1: Attested copy of the Receipt bearing No.1310002 dt.30.4.2008 issued by Deputy Zonal Manager (AM) APIIC Ltd., Industrial Estate, Vizianagaram in favour of M/s. Sri Ganesh Sai Tyre Works and Retrading towards water charges. Ex.B-2: Attested copy of the Receipt bearing No.1310003 dt.30.4.2008 issued by Deputy Zonal Manager (AM) APIIC Ltd., Industrial Estate, Vizianagaram in favour of MNR Refractories towards water charges arrears. Ex.B-3: Attested copy of the Receipt bearing No.1310004 dt.30.4.2008 issued by Deputy Zonal Manager (AM) APIIC Ltd., Industrial Estate, Vizianagaram in favour of Sri Venkateswara Industries towards water charges. Ex.B-4: Attested copy of letter dt.21.3.2016 issued by the Assistant Engineer (Operation Section) D.1, APEPDCL, Bobbili to PW-1. Ex.B-5: Attested copy of letter dt.30.10.2015 issued by the Superintending Engineer (Operation Circle) APEPDCL, Vizianagaram to plaintiff.

Sd/- V.Lakshmi Rajyam,

Principal Junior Civil

Judge,

Bobbili.

Page 29 of 29

I

' .

J // /, 012

H t: cOUKT Of TH l:: AU 1.H Y!v!~J.\ '~--1.:,1ClJl,L M l-,bb1 hJJ, I I: \)I-1 I'· _ \ I lN l ~ _._ ,.i.;:i r

l:i o

Present : s '" -1

ml. 1. Lakst1mI R.awam.

y P . .

n11c1pa Junii.., • . , , 1 ,, , . . FAC. Add t \. ·111 JUugc/ ooouil1. 1 I011al JucII .. . c,,1 Magist rate or I Class, t'l•JI . 11

Monciay, th~ s•n .1~y of August, 2016

I

Ca l~ntim ~ ':...IIJO, i. ;j/ I :.W:l.L

~,~i w,i: ~n:

State represented ~y the Suo l11spect0r or I t ce, Sc~thanogc1ram Police Station. . lvlTIPI, I1c1nt A ~1d :

1) Gorle Punyavath1, W/o Jog1na1clu. c1aed 22 yearc;, l(.Velcnna, Resident of Chellamunaiduvalasa v:llw~.::, Scethnnc::garnm Manda!

2) Dasari Raminaidu, S/o late Chinnam 11aIIdu, aqecl 60 vears. res'c-clo-

3) Dasari Satyanarayana, S/o Raminaidu, ilgcd 34 years, rest da

4) Dasari Bhaskar Rao, S/o Raminaidu, aCl!ed 30 years, rest-clo-

1

... /\c:: .. t .: cd

This case coming on 1.8.2016 l·or ,f-inal hearing betore me in the presence ot the Assistant Public Prosecutor for State and of Sri K.Prusad2 Raa, Advocate for acct.:sd and upon hearing both sides and having SLCOd over tor consIoeratIon tIII tl11s oay me court delivered the following: JU U u '( I: 1\1 I

A-1 to A-4 were tried tor ori .:::1 ,ces under section 4'to, '.)ll':J r, w 3 -4 1Y L.... 1.

The Sub Inspector of Police . Seethanaaaram Police ::,tatIon filed charcie

2.

sheet against the A-1 to A-4 In Cnme No.L'.b/ 2012 tor the ottences under :iectIon +rn.

509 r/w 34 IPC with the foIIow1ng alleqatIons:

Jaddu Simhachalam cind JaLldu ,'.tchiyyamma I1ave lc1Ken 1ancl l r om Go 1c::

cJsband under lec1se ~y[,C.cm l.. years IJack ancJ Venkata Naidu and his children 1.e., A· l s cultivating the same in Ch1nmimna1duv7 c1su village, Seetlvrna(Jr11ani ~-1andal since l.

On 28.3.2012 at 7 p.111. A 1 to f\-4 went to Laksilrn1puIdIT1 village :rnd they years. and abused l11n1 and I11s wIr~ i.e., trespassed into the house ot JaddU ':> 1n1 iaci7alu111 Jaddu Atch1yyamma in t1lthy la11glldde, 11 , ul\.,iig modesty ot Jc1dou /-\tt l11yyc1111 11a 101 tnc ~ .... " land as It bt·longs Lo 1-\-1. t-url 1 • 1 er 011 . t , 111e ~ ·,1 ;1 reasons that they should not culuVd c.

ha1arn K 1

' · 0 a Jogavya, Gorte v~nkata 1,, •cllQl.i

Id land, A~ l to A-4 went to said lana and

king them-to leave the said fand without

ay A-l to A-4 have cut their electrical wire

( Id land• On that Jaddu S1mhachatam gave

pt Jaddu Stmhachalam, G.Sangam, Head

repor:t to police.

l Istered a case in C.r.No.26/1.2 u/sec, 4%,

Const:ahle, Seethanaga ni

ation and conducted mvestIgat1on. During l , visited the scene of offence, observed the

sa me, df ew rou S1mhachalam, Jaddu Atchiyyamma Kola

I I ) Jogayya, Go de Paparao and recorded their statements.

ethanagaram police station who tooK up e investigation done by G.5angam Naidu, bon ot investigation, he tiled cnarge st,eet. Hence th e ch arge .

3.

oftence under section 448, 509 r w .H !PC

agamstA-1 to A-4.

4.

On the first a the accused, copies of documents v-.,ere fumIShed to them as contemp . 2.07 Cr.P.C.

5.

Xammed under sec. 251 Cr.P.C. and were e substance of accusation for the offtn~., "''IJ. bO';l r/w 34 lPC was put to them. --~sec. T'JU1 The accused d d b t d enie the offence anc:1 1 ·ity and claimed to e ne ·

P C!lle& not gu1

6.

In the course of PW-1 to PW-b were examined prosecution side evidence, and Ex.P-1 P-3 were marked Aft . ecutIon side ~v1dence, the accuseu

. er closure ot pros

were examined u/sec,313 Cr.P,L. by g incnmmating evidence apoeartnQ exi,Ia1111n the accused deniet-i llll;.' ~c. I\. dnd theY repor~cc, 110 a::.~ ll-:. , re

Defence evidence was closea.

Heard argumems on b 0th Sldt d perused tne reco,·u 011 I 1"'11u

7.

an

/Vow the pomr ror O t

8. e er mine: ., ,_.

l tie ottences level t:d aga111sL . ,-1 to A-4 are u,scc . ..,. , u, ::,u:;1 f!'N :r, ll-''- _Q.U · To prove tile gui1t oi· the accused t . or the , Jove sc:11d o ,e . .1.~ nc-e" · 1" prosecu·1on n c .,, \., " . L "-L,;

, 1pc viz

prove essential ingredients of section 4 lffi, '.JU'1 r/W ..:i'+ ., ~-~~~~~- ~8.3,2012 .. ~ 7 p, n1 ,, A-:i to ~~~ , :~~~r~•~e~- •~~~~

I.

¥. ~t rheHa .. ,u~.u -..it..11 JG1J u -- .J ,u v& '"'I;,£ ... ~ ~ t-h: 2~ ii11. .. .....

J..l......., l

v "'"'·· ,,c:.;se o, .. " .

t o commit an often.:e or to intimidate, insult or annov anv ,

~ersor. in th1Z house uf pW-li

That A-1 to A-4 on ~8•3•2012 at 7 p,rn, utt~red a~y word,

,,.1-.~~c" ·-"~-..1·r;- .,.__ ..

II. _,,~ .

.... ~ C:.i1Y gzst~re, or exhibit any .,,..,J ... ~, ,_, ............ •':;; ~ .. - ..

m

such w ord or souna shall be heard, of that suet, qesture or & P'.., "' ·-._~_..1,-- ._- •-ru•'" .. h 11 c ... Je~. :; .::ii i.. · b;;: ::zc:,, by -.v1,e o, ·i ll~ - ......... ~" '-'' · '':/ .. ,., ., , _. ... moae s ty or wite O pW~1 or intrudes up on 'I.he pn vacv Ol t1'\df~ of nt, •• -1 ,...4, ,_...,. .. 1- ~,•~'° 1 ·n Che!lamr.oid uv~~~:;;:;. vi!~ ~:::::. f\i -~._ ,..,..,.~ ,, v ..,._,_ I -

To prove the aoove saIa i:oints, the prosecution exam1nea f-'VV-1 to Pv/-o

9.

and got marked Ex.P-1 to Ex.P-3. P' .. ·l who is detacto-compla1nant in t his case.

deposed that he knows all the accused as they are residents of Chellamna 1au,a1asa village. He deposed th at lands of paternal aunt of A-1 were situated in their v111aae. He deposed that he and Kola Joga1ah (PW-2) took the said land for lease and cultivat1no the same. He deposed that all the accused came to their house and questioned them about cultivating the land~ of paternal aunt of A-1 by saying that the said land 1s their joint family property and thev also threatened to see end of his life 1t he aqam sLarted cu Iva 10n on . t' d I rl e turtner deposed th t . th e sat d a on tt'I~ ne.xt day w hen t,e alona an • It with Pola Joga1ah (PW-2) we.re at thc lancl, A-l carne there ancl removed the w1te ot motor pump set, while A-2 to A·4 c2i rne a nd threatened tl~em. ' He deposed tnat he raised panchayat betore eiders 01 tneir village but. the accus•·•rl ....... dtd not listen to tt,e I eriort (tx.P-1) to u· . words of elders and as such Ile qave ie Police. He deposecJ that A- 1 , I c.C. No i37/2012 . ·· ·. · · · .,,) tian · · -~ , " •-.. ,ns1 · · 7na and 'Venkatanarayana were ai,

.. . . d.him Jogalah (P,W '

.

\\ ,1 .

to A-4 ~Rpr,oache 1 'v . • • , , • ·

. pres~nt, . · _ . .

•,, .. • .. · .. ' .. • .... ,. .· f the eye Vv1Lness •, . •

. PW-2 who is on~ 0 es to the incident, deposed that he

: .

,, ,

10: , ,. .

to li ,. . · ·.

1ellarnna,auv1asa villag,;., ,,wh .. e, r"'as PVV-,1 , .. ··· d as they belong 1

... ..

:kn·ows aW the· accuse .11< .,.. :: beiong, to L:axmipuram village. He depo~ed that land ot paterna_l au~t ot A-1 are · d that 'he al · :

·

ong with PW-1 took the said land for situated in their village. He depose lea~e and cultivating the said l~nds slnc...e i\,o years. He deposed that all the ad:useo ~~~t to.the house ~f PW-1 and questioned them about cultivating the land of paternal au_nt of A-1 by saying that the said land \s Joint family property and also threatened

PW-1 to see her end if she again start culti~•adon on the said land. He deposed that at thc1t time he was also present. He further dt posed that on the next cay wnile he along with PW-1 were at the aid la_nd, A-1 to J\-lf came there and removed wire of motor pump set. He deposed that Venkatanaray2na and R.amaknshna were also present by the time and that he raised panchayat before elders ot their village but the accused d1d not listen to their words aod then he along with PW-1 gave report to police.

PW-3 is another eye wrt:ness co the incident, deposed that PW-1 and 2

11.

were cultivating land of his mother Gor1e Appamma. He deposed that A-1 1s his younger brother's wife. He deposed that PW-l and PW-2 took the said land for lease and are cultivating the said land since ~ years. He deposed that last year all the t r pump set tt1ough they warned che \ accused came there and removed th e wire or mo O ' 5 accused not to remove. He deposed that t11e1 eatter he alona with Gorle Parvath1, PW-1 and PW-2 gave report to police. He deposed ti iat he signed on Ex.P-1.

witness deposed that one year back he PW-4 who is another all 12. egecl eve ed that 1,15 grandmother gave land signed on the report given to th e Police. t-1c depos 1 sed came there and removed wire ot tor ·lease to PW-1 and PW-2 last Year an lilt accu

,

CCU!>e O wenl 1.0 lhe mo or pump set. He deposed that h Know tl1at a I ttle a I

t

e c a11 1i... LU

~~ ~j

\ I ) ) ; ' ,!()I .' l •/ l 110u~e or PW-1 and vvar nec1 111111 nu\ t•J _ '' ,-:1 te 1.I1e 1a11a a::, Ole ~C.1 \.1 lcil� I:, JV l1 'l , ... 1 ,/ C prope,ty. He deposed that A- t 15 w ... 11'" 01 ,1 s iunior paternal uncle Wh l! C:: A- 2.. 1s tamer ot · A- 1 and A-1. A-3 and A-4 are the orotne1 ~ ot A-1. He deposed ti1 ac ne I Idc1 21~0 sIqIiccJ

cx.P-1.

on

r

13. PW-6 who 1s one ot th e 1, 1' . ._stigat:1ng Ori 1cers in m ,s case, deposed thac he is retired Head constable ana thaL tJrev,ousIy ht worK.ea a~ t-Ieaq constaole in

Seethanagaram Police station t rom 2010 l• ) i..0 1'2./ He deposed tnat: on J0.3.LOlL at c1 · p.m. while he w as in-cl,atge ot po1,ce SL,,uon, pvV-1 ancl f-'VV-L came to po1Ice station and gave report. Basing on the report, he registered a case m Lr .l\lo.L6/ 1 2. U/sec."t'to, 509 r/w 3'+ IPC and issued HK U:x.1-'-L). ife deposea tliat laLer ne exarn,nea t-'VV-1 and

PW-2 in the police station and recordea tiie,r scatern1:nts ana on tne next aay mor111 11g he proceeded to t r1e scene or on ence s• Luai:ed at. land In Cne11amna1auvalasa v,1,age, observed tne same: anc arew rougn SKttc•1 ot tne scene or orrence, examined y \J v-3 ano

PW-4, Jaadu Atch1yyamma, V1l/ O S1mnc.cna1am ano recorded tt1 eIr stacemerns. t7e.

deposed t har furrner Invest 1gat1on was rc::,en up by cheIr :,uo-rnsoc::ccor or r'o11ce.

PVv-5 vvn o 1s t he t hen :,ub-l nspector ot Police, Seetnanagararn 1-'ol1ce

14.

station deposed t hat he 1s w ork.mg as ::5ub-lnspector ot l-'olIce, V1zIanagaram l I own police station since l.:i.2..015 and that he previously w orked as ::iub-l nspector ot i->olice,

Seethanagara m police sta Lton trom d .10 . .ZOll to 3.::> . .ZU13. He aeµosea U1aL on 31.5.2013 he had taKen up turther 11w2~t1gatIon In th is case tJOrn Pvv-::, a17u vc11r1eu t I1e same done by him and 10unt ,t on corrc:cc lines and arter con 1pld1on 01 1nvesl1gauon, ne tiled charge sheet.

ConsicJei 111q tile auov,: c.'VIUence of 1-'VV-1 to r VV-o. 111 so I di as p0In, ,~,l. l

15.

1.e., A- 1 to A-4 cornm ,cted l1ot15t:: Li espas:. 111 ti ,e nousc ot r'ln/-1 10r Lhe µuI p0se u,

Or .- et 1 \('d ' I· , t ,, . · a -\-1 tu A-·+ · l ,e ev,c e11u: ,l r vv ·l ::, 10\1\1 ::i u1 - corm n1tt1ng any 011 ence ell ., 1s c ' 1 1 1 1 came to his house and quest1om·ll i,,n aDout cuIt1vc1l1 11q t l1e. I~nd 01' pater11aI aunt or A-:

I .. Cl ,d::u LI 11 eatened to_ see end ot his Ille It 1~'- . . . by saying. that it i 1 I e 'W,ner deposea that Ji>n the_jwxt- day ht: , - '·· . ' . ., . •.

.,, again stai:t culti~a :bk said land, A-1 cam;i~;·re-~q~ remove<..

~ . . . ' .-.'!· . \'. and Pola Jag~yy.a LP . . ., e,., came there and threatene.d. He oeposea .., -

. .

l .

wire of ·m~tor pump set

bl!L the accused did not heed to their words that he raised d1~pute . . 0 11 c1::: . an<:! as -such he gave \ •,he accused went to tile house ot P\JV-1 and

16.

h,~ Iana ot paternal aunt ot A-1 oy sc.1y1nµ chat questioned him about the · cultiva o; tl1reacened to see end ot PW-1 it he again the land is jo,int family property and ' start c~ltivation on the said land. He~posed tnat at that time ne was also present. I t' He further deposed that on the next &y wi1IIe he and PW-1 were at tI1e land! ali tne rle aeposed tnat accused came there and removed wire or motor pump sec.

He deposed tnat he raised Venkatanarayana and Ramakrishna were Present there.

panchayat before elders of their village but the accused did not listen to their words and on that he along with PW-1 gave report to police.

I PW-3 who is one of the alleged eye witnesses to the incident deposed that

17.

l

PW-1 and PW-2 are cultivating the land of his mother Appamma for lease since 2 years

I and that last year all the accused came there and removed the wire of motor pump set though they warned the accused not to remove.

PW-4 who is another allegeLI eye witness to the incident categorically 18. deposed that his grandmother ga ve land for lease co PW-1 and PW-2... He deposed tnat last year all the accused came there anu /\-'-+ I emovcd wire ot niotor pump set. He cu -ed went to tI1e house ot PW-1 and deposed that he came to know that II a u 1...: ac :, t · ty 0 cu tvate the said lanu ;.is liie said land Is Joint am11y proper . warned him not t it·

PW-5 and PW-6 are Investigat· - Ing 0tt1ccIs.

~

i>age b 01 13

I he ev1d1...1Ce 01 ..;,,

19. tiat he Wd S not a u11 t:CL 1, 1t11c"'" le uil: ' V, -'j :, incident . PW-4 deposed l hat h e came l,, I<, ir)W that: all tne accused w ent Lo the t1ouse of PVV-1 and warned hirn not t ° CUlt1v,·,\, the land as the said land 1s JOlnL 1an111') prope1-ty. During t11s cross e,v ,amination a:o he deposed that he went to tne scene ot - offence after one hour after th . ' e incident 'ut A-l to A-4 w ere present at that t ime. He admitted that there ar"' c:ev era1 cases anl sU1t pending betvveen his aunt ancl A-1 and " " he husband . H e a . rrn c.ted that he 1s one ot che accused 1n th e case t iled bv A-1. l:::ven d

. .

. d t hat last vear all the accused went t o the land ot 'r-'VV-1 and 'rl/V- L thou gh 'r-'W-.) de pose . 0 motor ournp set tno,,un they warned t l1e accu"'eu llUL co remove. · and removed w ire t .

during is cross exa,111nat1011 ne ca1..c:qonca,ii deposed tnat he was no\. Pl esent w,1en tne rte uc:wu<;,<:U u1a. 11e \;c1::.s aispute tooK Dlace betvveen ~'vV"' 1 anc 2. and accused.

intormeq o v Pl/Vs l anu ;_ dDOUL Lnc 111uCJ -:il t. He turther depo<;,t:CI L11aL w11c.ri , 1t: ,vc: IL tc the scene ot ortence, PV\/ ::, 1 dnd L. 11a1 f<-c.d the entire inc1aent ano tnc:: e_;Jcer I re ·,1,e11t to his v illage. He admitted that his son r W-4 did not w itness 111c1dent and tna t P\N-'-1 came atter the 1nc1dent. h ence, the ev,uc:nce of PW-3 catego1 ,ca/1y shows thac ,1-:· 1vc.., not present when the a1legea 1nc1dent took place at the house or f-'VV-1 01 <l , Uk disput ed land.

PW-L w no 1s one or die alleged eye witnesses tu Lne 1nuoem, 20. categonca 11y dui 1ng his evidence deposed that all the accused wem to U1e I ,ouse or fW - 1 and questi0nt:d 111m about the cu1 uvc111on on tne land ot paternal aunl ot A- oy ~aymg that lana 1s JOlllL 1am1lv 01oµe,1y a11d cJlsc, Lhreatened to see tl1e end or f-'Vv'-1 1r 11e again h~ c1cpused that at thal L1 rne 11e Wd5 presem . t:v cn start culttVdilng til e sd1tJ 1d 11t.J. tt1ougl1 f-'\Jv-2 Cleooseu LlldL as ,1c was f!lesenl at l1 1e t,rne oi a11egc:a 11ic1aenL, w/11ct1

I ouse 01 i-iw-1 our 111y 111s cross exa rn111ation 11e aeµosed tnat cJHel t ·LI took place a lt: 1 • dispute with PVV-1 tt1 e accused approached 111111 also and asked 111m not to cuhwak tne l S ·oan.Jinq 1l c1t1d on L1 1at wl1e11 ne 1ep11ec_t u1aL lie. w 11I cu1ti val e

land as there are 1spu e 'c •

d

u

r l<' depo0 ed l )dt .,t b · ,r ·1c:.i with the d1'.> 1•ul,· "' a out / ,_j . . " , the land ,md thaL he IS 11ot co11c.t, ' r-

----~

f'dE,t· I tJI ;...> (

C.C.No:2.31/2012 \"' 1011 nIm and 1mmed1atelY tnerearct::r t it

h. house a

p.m. accµsed came to is b Ueposect tnat ~W-1 informed him tnal informed PW-1 about the incident e111ut.nce ot PW-2. more part1cu1a1 ly t he: accused disputed with him also. 1r,\orn1ed him that the ·accused di~puteo .L evidence wherein PW-2 de posed ~L was not Present wne,n t he .'accuseLI with him also, categorically sho PL.::a w1tn PW-i. Admrttedty: dunng cruc:! allegedly went to the house of PW-l al'l , LI 101L a1 Ct!r 01spute w1tt1 r' v\1-1: accused examination of PW-2, PW-2 had depos 17e1ice the evidence or f-'W-2 1s also nol t S with him. approached him and also d 1spu e believable.

coming to the evidence of PW· .l. 1-'W-l ou1Ing 111s eXam1nat1on tn ch1er 21. clearly deposed that he along with Kola Joga,ian LOok mt: 1and o, pakmdl aunt of A· l for lease and they are cultivating the said tana. ne oeposed that all the accu,,e·o came to his house and questioned him about cultlv6t1ng on the lane ot paternal aunt ot A-1 by stating that land 1s Joint tam1ly property ano also tl1reatened to see end ot hts lite 1t he again start cultivation on the said land. Even chougn PW-1 and PW-2 deposed tnar accused went to the house of PW-1 and quesUoned him about cultivating ot land or paternal aunt of A-1 and also threatened hmi w1m a1re consequences, admittedly a perusal of Ex.A-2 FIR shows that offences alleged are ui sec."¼48 and ~09 IPL out not u/ sec.506 IPC. If at all really the accused threaLened PW-l w1t11 dire consequences tne offence u/sec.506(2) IPC would have been menuonea in txY-l out It 1s not done so.

f-urthermore, t he allegations rn.:iuc dUdln;,t .. 1ccuse<.1 in me c.narge sheet 22. "\ ,-.1. anu abused tne w1te ot f-'W-1 m are that A-1 to A-4 trespassed mto th• h I'" OU:.e l)I r ' \ Admittedly, in thts case, wire ot filthy language and thereby insulted h . er modc:,ty. 11 ttiougti ;,r1e was shown as one PW-1 was not exammect ,n this case b Y the pro~ccuuo 1 Nt:.I e ci oss exar111ned and during of the witnesses ,n the charge sheet .,1A, · rvv•l to I \\u2022v-, 1 inset ior the accused had niade the course of their cross e.xarninatio ns, th,, 1e,11 I1,·u col

f

1-'age ti 01 .L.>

\..._-.,l.,rv{_-

1 I t app, 0achc0 ,. r, __ and informed 1Im t ldl as . ·1 1e11: die l IvII disputes pending in respect or th d he will not culuvaLe lhe :,arne. I he e a1spLL '-c Ian , said suggestion was admitted by P\rv-l_ Ver pW-1 denIea the :,uyyt::,t•o11 o, -owe , d I1Im cioouc Lile I)t:1mt:Iir_v learned counsel for the detence that W' Ik1 1 ,,- l was 1ntorrne r- 01 tt1e cIv1I suit in re::ioect 0 . _ 1 dl:,Puted Ian,. long with Pw-2 w Pv\1-4 attacked her. ,1 e a . "' PW-3 denied the suggestion "1 the learn, c1 counsel tor che cletence that when tne 0 • accused advised f- V 7 anu t-''vV -2. llOL lO , ,,1t1vate the a1spulcu lc.H�, LI 1ey d\ld(Kc:O V - - accusecl and 017 h h accused gave reoorc and in tum u-Iev qave I eport aaaIns1: w ic accused. PVV-4 denied the suaaestion or c1 ie learned counseI i or the cletence tnat accused dicl not commie \.ne a!legea ortellcc!s and due to prevIuu:, ai:,pu,e::.. ar.u Lc.1:,1:!5 t hey attached A-1 ana 111 tur 11 gave repon. , c.iainst accused only as a counter bias .. 10r the report given by Pd.

The above suggestions made i.o P W-1 to PW- 4 more pan:icularly Pvv-1 ana

23.

PW-3 shows that A-1 to A-4 wenc co tne !louse of PW-1 and Intorrned d1at t11al tney shou ld not cultivate the land as there are civil disputes pend1na 111 respect or the .

0k~

disputed land . Mere A-1 to A-L; wenc into che house of PW-1. It cannot be called tnat

~

A-1 to A-4 trespassed into tl1e house or f-'W-1 As per Section 4't8 11-'C:

'' whoever co mm/ts house- trespdss 1s li able tor punishment wl uch mav exlcnt ro • .. ,,·t t.. ~.-- - .. ,i.; _t.. fi7-· 1 '-_ , ..,.,- n dL"O v-n- •L.- ,, --,-d ... ____ -•-.. . .- ~t.. 1., _ ,-l, '/ C1/C ;,·e a r, o, ,l 'I _,, I IJJ(... vv ,11 .... 1/ i- .- 1L1 I Livi.I i . C Ll ll h .1 ::,0 I I LiiJ CC:.::,/ VI I a/ AL.- Hence "trespass" as del·1ned u/sec.44L lf-'l 1s as tollows:

,, whoever commits cmnmal rre s pas s by entering mto or rcma1 n10 9 m ..; ny

1-:J , r'r ..J ,,,~ //: ii LJ I U l' rC{ll/1g or W/7}'' J... -: .. /1 , u,ii g ~- _-:: ~ L. ii::;: ,:-,c: c I t.. ' /,.J ' -' building, tc,,t or '/C .Jj C, LJ 'S .,_1-1 a.:, '" JJ I _ ,-1 - -- tor worsh ip , or as a olace tor the cu slo dy of prope rty,, 1s said to commit a house

trespass."

Section 441 of IPC detine ' Cnrnmal trr::SJ)d 55' ' and it shows that:

"whoever ente rs mt o or upon prope rt'( in the posses s/On ot an other w1 rn mrent w

· ,..~,.-~r-•~- -·

;.~ .-~, :r11dot c: , msu /t or ~Mr•o •· ~r,;' ,..~....- t f/'-1 _. en In , .. ·v .,_,, ..> ... _-...;•,v , I co mrnit an 0, tC,7CC or ,,v JI / LI I ~~ r.. o , I I }' Q I such p rop e rty, or havm_a Jawtu!~ e,_n ~ ';d 1~to o~ up on s uc h o roo e rtv, un/ a)!tttul fv rem,u;, 5 there with intc, ,t thc ri3v '/ '.~-" 7 L 7 miwate , msu/t o; annoy ;;r,y such pc:,-so n,

or with intent to commie an ° 1 tence •

. . . . _, ~ , . . ' \\u2022 .. . ,f r • c1 e:.pass or cnmInaI Lrespass! there $houla •• ': \, -~1.. +

For provi~g that tliere IS

-·:., , 24.

., ' ' ,• . 11J1um1date or arn1oy or 111sult any person.

be intention to commit any offence o

. '. . . --~ ·t .•~-.. f-'\ .-1, A-1 to 1-\-4 came to hlS house .and . Admittedly ~s.se,ri 1'from the evidenc~ I, \ .\ -~. • ~· t 1)c1ternal aunt ot A-1 by saying that it .joint · , , quespqned him .. about ~Itivating the Ia " . . LO see end of his ~-<-if he agai~ start

. .family property and also threatened

.• ' . a11c9t d threat~as not mentioned in the

cultivation on tbe' said land. Howeve

u \\c:11t to the house of PW-1 for the purpose FIR. F~rthermore, if--~t all really the ao "::i,n1crea1y the offence u/s'ec.S~-or 566(.2) ~- , , of threateni~g h1rn with dire consequ

c., 1c was not done so.

IPC w ould have been charged by the e. u1ough in Ex.P-1 it 1s me~tionea that

Furthermore,

25.

'I 11 1suIted the modesty of PW-i""s w1t-e none accused abused PW-1 and hts wife 1i lu about the alleged abusing and Insu1tmg t ilDug11 n. 1s proved by the prosecution thaf ' the modesty ot PW-l's wite. Hence ta11Iiol be proved tt1at A-1 to A-4 went to the

A-1 to A-4 went into the house of PW ..

-1,v ottence or with an mtentJon to tnsutt house of PW-1 tor the purpose of co ng c1 or intimidate or annoy any person. this point 1s answe~ed against the prosecution and in favour of the deten (e' .

d the modesty ot PW-1 s wrte by

26. In so tar as point No.i I e

. ., n- to A· , ., ,•, 11ILe 111 . . xhibit arw obJect intending that

uttering any word or making any sound o, Q1

1oi l" tll e S -oncerned, as noted above

suc.h word, obJect or gesture shc1!1 b

\', II e I l ~ Se~ l;)y

. _

Pase .!.O 0 1 .u ! I~-

e ot the wit nesses ourinq

- cours,

non

01 l' 1'°'11 evidence have spoKen about the atltgtd

abuse by the accused toward

s f->Vv-1s \\'11 , wife was not at all examined '· ·- 1rthe1 more 1 tne alleged v1ct1m 1.e., 1-'W-l 5

in this cas .

' an

-. d .

prosecution an in tavour of th 1 as such th is point 1s answered against the l

e detenc,.

27.

Even though P\t

V-1 to Pvv--1,

when PW-1 and PVV-2 '"Posea that on tne next day 1.e.1 2.9.3.t.Ul.:'.

Were 0

. resent at t

wire of motor PUtn . heir 1ana, A-1 to A-4 came there and removed

p set and also thr

had hand d . eaten1..u them, admittedly PVV-1 c1eposed tha-c n-=

e over wire wh· ICh Was r

enioveo by the accused trom their motor oumo set. _

police did not choose t · · ·

o oroduce ,_ -ne sa1a damaged wire before this court.

28.

Furthermore PW 2 deposed that when the accused removed wire trom 1 - the disputed \and he was not present. He deposed that when he went to the scene ot offence PW-3 and PW-4 were dtsoutina witn the accused. He further deposed that A- 1 was carr,iing on said wire while other accused were present near the road. PW-1 also deposed that A-1 came there and remov,._d wire of the motor pump set while other accused came and threatened htm. P\iv-.:i c.uring his evidence deposed that last vear all the accused came there and removed wne ot motor pump set tnouoh thev warned the accused not to remove. However, aunno 111s cross examination he deposed that arter . • f ottence PW- 1 and r'\N-2 narrated the entire tnctdent. rle further going to the scene o , a d d not witness the incident and that PW-4 accompanied him atter deposed that PW- 7 1 ce the evidence ot PW-3 and PW-4 s11ows that they nave noc Hen the incident.

· d nt at all. witnessed the tnct e en u10 ugi1 it is presumed tllat A-1 to A·-l went mrn tne Furthermore, ev 29. d pw-1 .,nd removed wire trom the motor pump '.>et anu d15o land cultivated by pW- l an _ then also as the alleged ottences are u/sec.'l'-+8 and ~u~ nd pw-2, threatened PW-l a

l), we. dccused cannot be held tor u,e ottence a11e9ed 2/ and :i 0

c but not u/sec.4

IP Adi nn:t edlV u1ere IS counter case 111 L.C.d b/ lL basing on t l1e ,,." Q and :,09 11-'l. u/seC.TTV

C. C .N o2J l/ 2!Jl2 · w-1 to 'r '✓v· -~ report given oy A-1 against P - . v,~n ri.::P'.Jll c:1 ~1,1 . , , Li:. ,:..-1 ncid ci Jrt'3CJy' 91 -,

t knt"

rney nave y1ven report as they came 0 c:S oeLn t.cf 1 Us · , .Jell::.~ ano cr 1rnIna_I ca~ Hence when tI1ere are previo tnem. 1..

parnes anu con s1der1110 che admissions in2. · •. 11. d ~;lcii flS l \.1 le /l i d report ::igaI1 1st J-\· l to A-'t onlv on K,1owinc ., -•~ l J->.· i oave I eoo case cannoc oe I u1c:a uuL c: 1,·c.11 tnoufii, Lile pro~ecuuon ' -~aue rurtn errnore, as 11oted aoc , ::, 30. C 0'<.A!,,( allega1:ions against acu.,sc:d 10 1 tl1e otrence~ .. 1 !:cC. ·Hd emu :,U::l 1 /h' .:.i't l r-1...- ,c Cc-lW fl Ot- • prove 'il the same a ,d cis such accu,,ed are enuueo I or bcnern: 01 OOL,Ol.

ln the result, M- 1 tc A-r ate 1 ou 11u JH.>t <_J Ll1 1L '1 ior u 1~ 0 1 1e k. c3 L . ~cc .-.- c 31.

ottences. oad bond~ o accu"ea sr a\1 sta, 11c dlLU::icu di._ ull e<.. ~ ·-·d 1,1:,~11d 1 :_ic,, . _: 1 _...,, U.~ .L. to d.Jcear bc:,ore hPoe 11.:11:e ct'L,rt execute: oonu:, 1 or Ks .:,uUO, - each u:sec.43 ~ .. J1ouuced 1Jt:ro1 e t ni;, COL.It d i 10 .1e ,ce 1t an y acoea, Is pr eterrca . \\Jo c.a~e orooe there: 1s no oraer reaarainC! disposal or the c" c xot.Jercv .

JI ei.a ,ed to 5te n oar aoi1 er , ,r anscnbt: _ .J _, , _11rn , co rrecu:!Cl a. 1d /JI o 1 c ~ ic~, V J '-- ,,, :;per. caurt, th;s th<- 1-' 1 day cf, 1ugu:;t, 2l 15 .

"1'-11\J\ ll-''-\L .JUi'<!U, L !I _ .Jl,L.Jl.ciL Of"'IOOTI T v~•--.. . .. ldlLIOll d i JUOIUal l'la(jl:,Uate 01 l L1d:,::,_

f/1(

Bobbi I 1.

ADDt:,1d lX 1t t 1dencti

• " .. :J ',,./I~ I .>J\.-"

t-'or Prosecution: r 01 LJefcnc.t! .

PW-1 .Jaddu ~1mnau1 c1ldlll PW-2· Kola Joqdvva r\'! ; Co.I· "cr·k--:::i ~J;:i;Jt_; PVv ➔. \.Jor 1e f-'t11Jdf c10 , ~ ' '. 'lJ" , S T -;ff':' '', , n\'- ', r' I\ , , --,anqarn, H ( . I \ 1 .

~- , ~ ked

P .- 0 secut:c n:

~ fl ~

•

£X.P-1:Report or P\IV-1 oated 30 3 -

· -20ll "I ~ Ve, w police. o ..,·Q•·r·g i""'' FTD · .l." · /:-1 ..... r ~'0 '"l.C: '12 r I ,a, £x., - ,t_, Ex.P-3.Rough SKetch o·r scene t· ~ •"-..V/ • I • . •

• 0 offence.

For D~ f. ~M ~Ni f

-1 cts Marked

~~ ~ '

PKJ:NClPAL JUI\J1Ur<. U v ll JLJ UGt:,

i,, c: Additional Jud1c1ai Maq1strate of i Ciass,

Bobbi U.

O.S.No.125/2014

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :BOBBILI

Present: Smt.V.Lakshmi Rajyam,

Principal Junior Civil Judge, Bobbili

Wednesday, the 2nd day of May, 2017

O.S.No.125/2014

Between: Mahesh Agarwal S/o late Mahaveer Prasad, Hindu, aged 44 years, Proprietor of M/s A.R. Industries, Resident of Flat No.501, D Block, KSR Complex, Seethammadhara, Visakhapatnam.

.....Plaintiff.

And:

1) The Zonal Manager, Andhra Pradesh Industrial Infrastructure Corporation Limited, Industrial Estate, Visakhapatnam.

2) The Manager, Andhra Pradesh Industrial Infrastructure Corporation Limited, Industrial Growth Centre, Bobbili, Vizianagaram District.

....Defendants.

This suit came up on 3.4.2017 before me for final hearing in the presence of Sri.P.M.Sai, Advocate for the plaintiff and Sri. K.Prasada Rao, Advocate for the defendants and having stood over for consideration till today, this court delivered the following:

J U D G E M E N T

The plaintiff herein filed this suit for declaration that the

Cancellation-cum-resumption notice dated 21.8.2014 issued by the 1st defendant is illegal, arbitrary and capricious and not binding on the plaintiff in respect of the plaint schedule land and for consequential relief of permanent injunction restraining the defendants, their men, agents and assignees from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property until he is evicted by due process of law and for costs of the suit.

2.Brief averments of the plaint:

The plaintiff is the proprietor of M/s. A.R. Industries,

Visakhapatnam while the defendants are registered company having its registered office at Hyderabad and the defendants used to sell the lands to various people by developing the same by laying roads, drains etc. in the industrial areas. The defendants to develop the area in

Page 1 of 22

O.S.No.125/2014

Bobbili region, laid some plots in Industrial growth centre, Bobbili. The plaintiff purchased the plot No.118 of the said Industrial growth centre,

Bobbili which is shown in the plaint schedule. The plaintiff purchased the said plaint schedule property from the defendants for a sum of

Rs.3,45,000/- with view to set up a unit for the manufacture of

Corrugated Boxes etc. The plaintiff and the 1st defendant entered into an agreement of sale dated 1.3.2008 and the same was registered as document No.1096/2008 in the Sub-Registrar Office, Bobbili and the defendants had handed over the vacant possession of the plaint schedule land to the plaintiff on 1.3.2008 itself. At the time of registering the agreement of sale, the defendants have assured to lay the road and drain and develop like anything. Believing the version of the defendants, the plaintiff paid entire sale consideration and obtained physical possession of the plaint schedule land. The plaintiff, in pursuance of the agreement of sale and possession of the plaint schedule property, applied for supply of electricity etc., but the

Electrical Department informed that so far the defendants have not paid amount to lay High tension wires and high load transformers etc. in the said growth centre. The plaintiff contends that the defendants’ organization has allotted nearly 400 acres of land to some companies in the year 2006-07 and expecting about the major industries will come to

Industrial growth centre, Bobbili, the plaintiff purchased the plaint schedule property for setting up industry and approached the bank for financial aid to the said industry. The bank people assured that if major industries come to growth centre, the small industries will be benefited and further assured to give financial aid to the industry but so far no major industry has come up. So the bank people have not considered about financial aid to the plaintiff and application is still pending with

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the bank. The plaintiff further contends that at the time of sale, the defendants assured that they will lay roads, drains provide water supply and power supply in the areas, but the defendants failed to do so for the reasons best known to them. The plaintiff contends that he is ready and willing to complete his project work if the defendants provide road, drains, water and power supply in the locality. He further contended that while he was acquiring license one by one from the concerned authorities, he could not get power supply to run the unit and the defendant company did not establish the total infrastructure facility and did not provide water sources to the industry and in turn the 1st defendant issued registered Cancellation-cum-resumption notice dated 21.8.2014 with all false and untenable allegations in respect of the plaint schedule property and the defendants requested to surrender the said plot within 15 days from the date of receipt of cancellation order in any case on or before 10.9.2014. As per postal endorsement and served to the plaintiff on 5.9.2014 and as such the defendants’ company have acted illegally and violated the terms and conditions of the understandings and agreement. The plaintiff contends that the said notice dated 21.8.2014 is illegal, arbitrary, capricious and against the natural justice. The plaintiff contends that as he requested the 1st defendant to grant considerable time for establishing industry on several occasions, as there are latches on the part of the defendants in providing infrastructure and other facilities in the area as assured by the defendants’ company. He contends that the defendants have to take steps under the process of law by filing suit and they cannot take law into their hands. He contended that he paid entire sale consideration and no amount is due to the defendants’ company by the plaintiff but the defendants’ company failed to provide minimum infrastructure in

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the locality to establish the industry and further the defendants’ company is not cooperating with the plaintiff to get electricity and water supply in the area. Hence he filed this suit for declaration that the cancellation-cum-resumption notice dated 21.8.2014 is arbitrary, capricious, illegal and against the natural justice and for consequential relief of permanent injunction restraining the defendants, their men, agents etc., from ever interfering with the possession of the plaintiff in respect of the plaint schedule land until he is evicted by due process of law.

3.On receipt of notices, the defendants made their appearance and

Sri K.Prasada Rao, Advocate filed Vakalatnama on behalf of the defendants. The 1st defendant filed detailed written statement and the same was adopted by the 2nd defendant by filing memo. In such written statement, the 1st defendant has denied all the allegations made in the plaint. The defendants contended that the plaintiff had submitted an application for allotment of site for establishment of industry and accordingly he got the site for cheaper rate and also executed registered agreement dated 1.3.2008. He contended that as per the agreement of the sale, the plaintiff has to start construction within 6 months from the taking of possession of the plaint schedule property.

He contended that the plaintiff had taken delivery of the plaint schedule property on 1.3.2008. He contended that as per clause (8) (c) of the

Registered Agreement of sale, the plaintiff had to complete the establishment of industry within two years from the taking possession of the site and to start business and as per the sale agreement, extension of 2 years time is permissible but that time also elapsed. He contended that total 4 years have elapsed but the plaintiff has not at all started any activity in the plaint schedule land and the plaintiff has not

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started even building/shed for running the industry and the same was found as vacant site during the course of inspection made by the 2nd defendant and his officials. He contended that they got issued show- cause notice dated 4.6.2012 to the plaintiff for cancellation of allotment of site as the plaintiff did not start industry as per terms of the sale agreement for which the plaintiff issued reply with untenable allegations. He contended that they were not satisfied with the reply of the plaintiff, they issued proceedings for cancellation of the allotment of site ie., plaint schedule property and ordered for resumption. He contended that the plaintiff grossly violated the conditions of the sale agreement even though they provided all amenities to the plaintiff and he failed to start industry/factory work even though 4 years have elapsed, they issued cancellation of allotment of site proceedings. They contended that there are no merits in the suit and that the court fee paid is not correct. Hence they sought for dismissal of the suit with costs.

4.Basing on the pleadings of both parties the following issues were settled for trial:

1. Whether the suit agreement of sale dt.1.3.2008 executed between the plaintiff and the 1 st defendant is true, valid and binding on the defendants or not?

2. Whether the plaintiff is in possession and enjoyment

over the suit schedule property or not?

3. Whether there are any latches on the part of the defendants in providing infrastructure and other

facilities to the plaintiff as agreed or not?

4. Whether the plaintiff is entitled for the relief of declaration, declaring that the cancellation cum resumption notice/letter dt.21.8.2014 is illegal, arbitrary, capricious and not binding on the plaintiff or not?

5. Whether the plaintiff is entitled for grant of permanent injunction restraining the defendants,

their men, agents and assignees from ever

interfering with the peaceful possession and enjoyment of the plaintiff with the suit schedule

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property until he is evicted by due process of law or not?

6. To what relief?

5.During the course of trial, the plaintiff-Mahesh Agarwal got examined himself as PW-1 and got marked the Original cancellation -cum-resumption notice dated 21.8.2014 issued by D-1 to PW-1 as Ex.A- 1, the Certified copy of the registered agreement of sale dt.1.3.2008 executed between PW-1 and D-1 as Ex.A-2, Office copy of reply notice

dated 4.6.2012 issued by PW-1 to D-1 as Ex.A-3 and Postal

acknowledgment showing the service of Ex.A-3 notice to D-1 as Ex.A-4.

6.After completion of the plaintiff’s side evidence, initially the defendants have examined one Patagarla Madana Mohan who is working as Branch Manager, APIIC, Bobbili was examined as DW-1 and through him Ex.B-1 to Ex.B-4 were marked. However, there after as

DW-1 was reportedly transferred to some other place, his evidence was eschewed. Thereafter the defendants have examined one

M.V.Karunakar, the present Branch Manager of APIIC, Bobbili as DW-2 and through him again the same documents were marked as Ex.B-1 to

Ex.B-4 as shown in appendix of evidence.

7.Heard arguments of both sides and perused the record.

8.ISSUES NO. 1,3 & 4 1.Whether the suit agreement of sale dt.1.3.2008

executed between the plaintiff and the 1 st defendant is

true, valid and binding on the defendants or not? 3.Whether there are any latches on the part of the

defendants in providing infrastructure and other

facilities to the plaintiff as agreed or not? 4.Whether the plaintiff is entitled for the relief of

declaration, declaring that the cancellation cum

resumption notice/letter dt.21.8.2014 is illegal,

arbitrary, capricious and not binding on the

plaintiff or not?

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9.For the sake of brevity and for avoiding repetition, issues 1, 3 and 4 are dealt in jointly. To prove the above said issues, the plaintiff–

Mahesh Agarwal got examined as PW-1. He filed his chief affidavit in lieu of his examination in chief which is nothing but a reiteration of the contents of the plaint. In such evidence PW-1 deposed that he is the proprietor of M/S A.R. Industries, Visakhapatnam. He deposed that the defendants are registered as a company having its registered office at

Hyderabad and they used to sell the lands to various people by developing the same by laying road, drains etc. in the industrial areas.

He deposed that the defendants in order to develop the area in Bobbili region, laid some plots in Industrial Growth Centre, Bobbili. He deposed that he had purchased the plot No.118 in Industrial Growth Centre,

Bobbili for Rs.3,45,000/- with a view to set up a unit for the manufacture of Corrugated Boxes etc. He deposed that he and 1st defendant entered into agreement of sale dated 01.3.2008 (Ex.A-2) and the same is registered as document No,.1096/2008 in the Sub-Registrar office,

Bobbili and the defendants have handed over the vacant physical possession of the said schedule land to him. He deposed that at the time of registration of the agreement of sale, the defendants assured to lay the road and drain and develop like anything. He deposed that believing the version of the defendants, he paid the entire sale consideration and obtained physical possession of the plaint schedule land. He deposed that in pursuance of the said agreement of sale and possession of the plaint schedule property, he applied for supply of electricity etc., but the electrical department informed him that so far the defendants have not paid amounts to the department to lay High

Tension wires and high load transformers etc. in the said growth centre.

He deposed that the defendants' organization has allotted nearly 400

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acres of land to some companies in the year 2006-07 and expecting that major industries will come to Industrial growth centre, Bobbili, he purchased the plaint schedule land for setting up industry and approached the bankers for financial aid to the said industry. He deposed that the bank people also assured that if the major industries come to growth centre, the small scale industries will be benefited and they assured to give financial aid to the industry. He deposed that but so far no major industry has come up and so the banks people have not considered the financial aid to him. He deposed that the application is still pending with the banks only. He further deposed that at the time of sale, the defendants assured that they will lay road, drains, provide water supply and power supply in the areas, but so far the defendants failed to do so for the reasons best known to them. He deposed that he is ready and willing to complete the project work, if the defendants provide road, drains, water and power supply in the locality. He deposed that the defendants without providing amenities as mentioned above and assured by them at the time of sale, quite contrary to the understandings and assurances, illegally issued a letter dated 29.10.2008. He deposed that the letter dated 29.10.2008 is illegal, arbitrary and capricious and against the natural justice. He deposed that on 4.6.2012 he issued a reply and requested the authorities not to take any coercive steps and to grant time. He deposed that there is no response from the defendants and he approached several times and requested to consider its request and they assured that they will consider his request and forward the same to higher authorities, but there is no response from the defendants and he is under the impression that his request is accepted and waiting for orders. He deposed that while he is acquiring license one by one from the

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concerned authorities and not getting power supply to run unit and the defendants company did not establish the total infrastructure facility and not provided water sources to the industry, by suppressing the earlier requests and representations without issuing any reply or proceedings, quite illegally the 1st defendant issued registered cancellation-cum-resumption notice dated 21.8.2014 (Ex.A-1) in respect of the plaint schedule property and requested to surrender the said plot within 15 days from the date of receipt of said order in any case on or

before 10.9.2014 and the said notice was posted on 2.9.2014 as per

postal endorsement and served on 5.9.2014. He deposed that the defendants company acted illegally and violated the terms and conditions of the understandings and agreement. He deposed that the said notice dated 21.8.2014(Ex.A1) is illegal, arbitrary and capricious and against the natural justice. He deposed that several times he requested the 1stdefendant to grant considerable time for establishment of industry, as there are latches on the part of the defendants’ company and requested them to provide infrastructure and other facilities in the area as assured by the company. He deposed that the defendants are trying to take law into their hands. He deposed that the defendants have to take steps under due process of law by filing suit etc and they cannot take law into their hands. He deposed that he paid entire consideration and no amount is due to the defendant company. He deposed that the defendants company failed to provide minimum infrastructure in the locality to establish the industry. He deposed that defendants company is not cooperating with him to get the electricity and not providing water facility in the area and hence he filed this suit for declaration that the cancellation-cum-resumption notice dated 21.8.2014(Ex.A1) is illegal, arbitrary, capricious and

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against the natural justice and for injunction restraining the defendants, their employees, agents and servant etc., from interfering with his possession in respect of the plaint schedule land, until he is evicted by due process of law.

10.To prove his contention, the plaintiff had filed original cancellation-cum-resumption notice dated 21.8.2014 issued by D-1 to

PW-1 as Ex.A-1, the Certified copy of registered agreement of sale dated 1.3.2008 executed between PW-1 and D-1 as Ex.A-2, the Office copy of the reply notice dated 4.6.2012 issued by PW-1 to D-1 as Ex.A-3 and

Postal acknowledgment showing the service of Ex.A-3 notice to D-1 as

Ex.A-4.

11.As noted above after closure of plaintiff’s side evidence, the defendants have examined one Patagarla Madana Mohan, the then

Branch Manager of APIIC as DW-1. In fact DW-1 was examined in chief and through him Ex.B-1 to Ex.B-4 were marked. However, there after as

DW-1 was reportedly transferred to some other place, his evidence was eschewed. Thereafter the defendants have examined one

M.V.Karunakar, the present Branch Manager of APIIC, Bobbili as DW-2 and through him again the same documents were marked as Ex.B-1 to

Ex.B-4 as shown in appendix of evidence.

12.DW-2 filed his chief affidavit in lieu of his examination in chief. In such evidence he reiterated the contents of the written statement of the defendants. He deposed that he is the 2nd defendant in the above suit.

He deposed that the State government has established the growth

Centre at Bobbili with a view to develop this area industrially and financially as this area is a backward area and in order to develop the industries, the Government acquired nearly 800 acres and named the

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same Industrial growth centre and to encourage the industrial growth centre and industries, the government had given the sites for separate rates and also provided other amenities like water, electricity etc. for establishment of industries in the growth centre by spending crores of public money. He deposed that the plaintiff submitted an application for allotment of site for establishment of industry for cheaper rate and also executed registered agreement dated 1.3.2008 (Ex.A-2). He deposed that as per the agreement of the sale, the plaintiff has to start construction within 6 months from the taking of possession of the plaint schedule property and the plaintiff has taken delivery of the plaint schedule property as on the date or registration of Ex.A-2. He deposed that as per clause (8) (c) of the Registered Agreement of sale, the plaintiff had to complete the establishment of industry within two years from the taking possession of the site and to start business and as per the sale agreement, extension of 2 years time is permissible and that time is also elapsed, totally 4 years have elapsed, but the plaintiff has not at all started any activity in the plaint schedule land. He deposed that they have got issued notices to the plaintiff, but the plaintiff did not start even the building/sheds for running the industry and the same is found as vacant site during the course of inspection made by him and his officials. He deposed that they got issued show cause notice dated 29.10.2008 to the plaintiff for cancellation of allotment of site as plaintiff has not started industry as per terms of the sale agreement for which the plaintiff issued reply with untenable allegations and they have not been satisfied with the reply and as such they issued proceedings for cancellation of the allotment of site ie.., plaint schedule property and ordering for resumption. He deposed that the plaintiff failed to obtain electricity connection and water supply connection even though they

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provided the same. He deposed that as the plaintiff grossly violated the conditions of the sale agreement even though he provided all amenities to the plaintiff, the plaintiff failed to start industry/factory work even though 4 years have elapsed, they issued cancellation of allotment of site proceedings vide Ex.A-1. He deposed that there are no merits in the suit and that the court fee paid is not correct.

13.Considering the entire evidence of both parties, Ex.A-1, Ex.A-2 and

Ex.B-1 to Ex.B-4, the admitted facts are as follows:

i)That the defendants are owners of the suit schedule property; ii)That the 1st defendant entered into an agreement of sale

dated 1.3.2008 (Ex.A-2) with the plaintiff and got registered

the same with Sub-Registrar office, Bobbili vide document

No.1096/2008; iii)That the plaintiff purchased the suit schedule property from the defendants for a sum of Rs.3,45,000/- with a view to set up unit for the manufacture of Corrugated Boxes etc. and took possession of the same on the date of execution of the agreement of sale; iv)That the defendants have issued Ex.A.1-Cancellation cum

Resumption notice dated 21.8.2014 to the plaintiff by cancelling the allocation of plaint schedule property in favour of the plaintiff.

14.Considering the above admitted facts, the plaintiff had filed registered agreement of sale dated 1.3.2008 (Ex.A2) which shows that the plaintiff had entered into an agreement with the 1st defendant for allotment of plaint schedule property in his favour for the purpose of establishing industry for manufacture of Corrugated boxes etc.

15.A perusal of Ex.A-2 clearly shows that the plaintiff had paid entire sale consideration of Rs.3,45,000/- to the 1st defendant at the time of

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execution of Ex.A-2 itself. Ex.A-2 further shows that the plaintiff has to start construction of factory building within six months after being put in possession of the same after clearing necessary clearances from the competent authorities like Building Plan approval, filing of application with the A.P.Transco and other clearances etc. A perusal of Ex.A.1- clause (8) (c) shows that the plaintiff i.e., the party of the second part shall go into commercial production duly erecting machinery and obtaining regular power supply connection with TWO years of being put in possession of the allotted plot/land. It is further mentioned in the clause (8) (c) of Ex.A-2 that any extension of time, if considered, will be subject of levying of penalty at 10% on the land cost at the prevailing rates. No extension for more than 2 years can be entertained.

16.As per clause (8) (o) of Ex.A-2, “if the party of the Second part commits breach of the covenants herein contained, the allotment stands cancelled and this agreement shall stand determined without any notice thereupon the Party of the Second part will be treated as an encroacher and a trespasser who will have no right whatsoever in the schedule property under these present and it shall be lawful for the party of the First Part to re-enter upon the said land and resume possession thereof and also of the buildings standing thereon, the transfer made in favour of the Party of the Second Part under these presents shall become null and void and all rights of the Party of the

Second Part in the schedule property under this agreement and any building thereon shall at once cease and determine….. ….. …. “

17.Hence a perusal of Ex.A-2 more particularly clause (8) (c) and (o) clearly shows that the plaintiff has to start construction of building in the allotted site within six months from the date of being in possession of

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the said building/land and he has to commence business within two years of being put in possession of the allotted building/land. Clause (8)

(o) of Ex.A-2 clearly shows that if the plaintiff commits any breach of covenants mentioned in Ex.A-2, allotment stands cancelled and the agreement shall stand determined without any notice to the plaintiff and the plaintiff will be treated as encroacher and trespasser who will not right over the plaint schedule property. Hence considering the Ex.A- 2 clause (8) (c) it is clear that construction of building/shed must be made within six months of handing over the possession to the plaintiff and the commencement of the business must be done within two years from thereon. However, in the instant case, PW-1 during his cross examination admitted that he had not started construction of any business in the said premises as stipulated in Ex.A-2 Agreement. He deposed that he had submitted an application seeking time for establishment industry only once and that the said application was submitted before expiry of six months from the date of Ex.A-2. He deposed that he submitted the said application in the year 2009. He admitted that growth centre had conceded to his request to grant time for construction of industry but he did not start any industry even then also. The plaintiff contended and when examined as PW-1 deposed that he could not construct any building or start business in the allotted site due to the lack of infrastructure. He deposed that at the time of agreement of sale, the 1st defendant had assured that he will provide drain, electricity supply, road etc, but they did not do so. In fact, PW-1 during his cross examination voluntarily deposed that as there was no proper infrastructure like road, water supply, power supply he could not establish any industry. The defendant denied the fact that they have not provided any infrastructure as assured by them.

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18.DW-2 deposed that even though they have provided infrastructure, the plaintiff failed to start any industry as per the terms of the sale agreement and as such they have issued show-cause notice on 29.10.2008 to the plaintiff for cancellation of allotted site to the plaintiff but the plaintiff issued reply notice with fall false averments and as they were not satisfied with the said reply, they issued proceedings for cancellation of allotment of plaint schedule property. DW-2 deposed that the plaintiff failed to obtain electricity and water supply connections even though they provided the same.

19. Hence considering the above evidence of PW-1 and DW-2, it is clear that only dispute between both the parties is that while PW-1 contends that due to lack of infrastructure assured by the defendants, he could not establish any industry in the allotted site, the defendants denied the same and contended that even though they provided infrastructure like water supply, lighting, roads etc., the plaintiff failed to establish industry within stipulated time. Admittedly as per the evidence of PW-1, it is clear that the plaintiff had not started the construction of any building/shed and did not start any industry within 2 years from the date of agreement of sale (Ex.A-2). Further, even though the 1st defendant had granted two years time, even though 4 years have elapsed, the plaintiff failed to complete project work. PW-1 during his evidence deposed that the defendants did not provide any amenities as assured by them. However he deposed that he is ready and willing to complete the work if the defendants provide road, drain and water and power supply in the locality. Hence the above evidence of PW-1 shows that PW-1 did not start construction or start the industry within 4 years of execution of Ex.A-2. However, he deposed that he has already

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constructed boundary wall and room level but there is no electricity supply and as such he could not start industry. He admitted that as per

Ex.A-2 Sale agreement if the industry is not started within six months from the date of agreement, D-1 can take back purchased suit land from them. He further admitted that after waiting for two years from 2010, the 1st defendant issued resumption notice to him. He admitted that D- 1 had issued about four notices demanding him to start the industry in the purchased site.

20.Considering the above, the evidence of PW-1 shows that the plaintiff contends that he could not start industry due to lack of infrastructure only. PW-1 deposed that he had constructed boundary wall and room level but as there is no electrical supply he cannot start industry. The defendants more particularly DW-2 denied the same and deposed that they have provided infrastructure. He admitted that he had provided high tension wire for the purpose of power supply to the industry. However, he denied the suggestion of the plaintiff that he did not run HT line to the plaintiff company with the period of 2 years after the sale agreement with the plaintiff and even till today. He voluntarily deposed that they will provide the site to the APEPDCL for establishing sub-station and that it is for the electrical department to erect sub- station. He deposed that their company is not personally running any

HT line or constructing any electrical poles in the plots given to the company.

21.Considering the above evidence of DW-1, it is clear that the defendants are not running any H.T line or constructing any electrical poles and that they will provide site to the APEPDCL for establishing sub-station and it is for the electrical department to erect sub-station.

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PW-1 during his evidence deposed that after getting into possession of the suit schedule property, when he applied to supply electricity, the department informed them so far the defendants have not paid amounts to the department to lay high tension wires and high load transformers in the said growth centre. However, even though PW-1 deposed as above, that when he had applied to the electricity department for supply of electricity, the department informed that the defendants have not paid amount to lay high tension wires etc., the plaintiff did not file any document to show that the had approached the electrical department. Furthermore, PW-1 during his evidence deposed that does not have any documentary evidence to show that he had submitted an application to the electricity department. In fact, PW-1 deposed that he had submitted an application to the electrical department but they replied that he has to bear charges for getting electricity connection to his industry. Hence even though PW-1 deposed that he had approached electricity department and made an application for supply of electrical connection, there is no documentary evidence to show the same.

22.On the other hand, 2nd defendant filed Ex.B-4 which is letter dated 21.3.2016 issued by APEPDCL to the 2nd defendant which shows that the plaintiff had not at all applied for electrical power connection as on date.

Hence the contents of Ex.B-4 clearly show that the plaintiff did not approach the electrical department or applied for electrical power supply connection. Hence if Ex.B-4 is believed, it will be clear that the plaintiff is deposing falsehood. When the plaintiff did not approach the electrical department or made any application for supply of electricity connection, latches will be on the part of the plaintiff only but not on the defendants.

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23.Furthermore, a perusal of Ex.A-2 registered agreement of sale

dated 1.3.2008 clause (8) © clearly shows that it is for the plaintiff who

has to start commercial production by duly erecting machinery and obtaining regular power supply connection within two years of being put in possession of the allotted plot/land. Hence as per section 8 (c) it is for the plaintiff to obtain regular power supply connection but in the instant case the plaintiff had not at all approached the electrical department or applied for supply for electrical power connection and in turn the plaintiff contends that the defendants have to provide power supply and that the latches are on the part of the defendants. Hence the above evidence of plaintiff and clause 8 © of the Agreement of sale

dated 1.3.2008 clearly shows that the latches are on the part of the

plaintiff but not on the defendants.

24, Furthermore, the evidence of PW-1 shows that he is speaking falsehood. There are discrepancies between the evidence of PW-1 and

Ex.B-4 regarding the making of application by PW-1 to the electricity department for supply of electrical connection etc. Furthermore even though the plaintiff contends that the defendants did not supply water or electricity, the Ex.B1 to Ex.B3 show that the defendants are supplying water to the industries in the relevant period. Hence it is clear that there are no latches on the part of the defendants and that latches are on the part of the PW-1 only. If at all really the defendants have not provided any amenities as assured by them at the time of execution of

Ex.A-2, the plaintiff ought to have issued notice when he received letter

dated 29.10.2008, but he did not do so and he simply waited till 2012.

Hence considering the above evidence, as plaintiff did not start any industry or made any construction within two years from the date of

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execution of Ex.A-2 even though time was extended for a period of 2 years from 2010 and even though the plaintiff did not construct anything or start industry even till today, it is clear that Ex.A-1

Cancellation cum resumption notice is valid one but not illegal proceedings. The defendants have followed clause 8 (o) and issued

Ex.A-1 Cancellation-cum resumption notice dated 21.8.2014. As per the said clause 8 (o) of the agreement of sale dated 1.3.2008 as plaintiff had committed breach some of the covenants i.e., clause 8 (c), agreement stands terminated and the defendants have liberty to resume possession of the plaint schedule property. Hence there is no illegality in issuing Ex.A-1 notice and as such the plaintiff is not entitled for the relief of declaration that Ex.A-1 notice dated 21.8.2014 is illegal, arbitrary, capricious and against the natural justice. Hence issue Nos. 1, 3 and 4 are answered against the plaintiff and in favour of the defendants.

25.Issue Nos. 2 and 5:

Coming to the issue No.2 and 5, admittedly, the plaintiff was put in possession of the plaint schedule property on the date of execution of

Ex.A-2. In fact, the defendants are not denying the fact that the plaintiff was put in possession of the plaint schedule property on the date of execution of the Ex.A-2 and that he is in possession and enjoyment of the same even till date. DW-2 during his evidence admitted that since the date of handing over the possession to the plaintiff, the plaintiff is in possession and enjoyment of the suit schedule property. He voluntarily deposed that as the suit is pending possession was not taken back from the plaintiff. Hence, possession of the plaintiff over the plaint schedule property is admitted fact. However, as per clause 8 (o) of agreement of

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sale dated 1.3.2008 as found in ex.A-2 when the plaintiff commits breach of any of the covenants mentioned in agreement of sale, agreement stands cancelled and the plaintiff will be treated as encroacher and trespasser who will not have any right in the plaint schedule property. Admittedly, even though the plaintiff is in possession and enjoyment of the suit schedule property by the date of filing of the suit and even till today, the said clause 8 (o) and Ex.A-2, clearly shows that the plaintiff is treated as encroacher and trespasser who has no right over the plaint schedule property. In fact, as per clause (3) of the agreement to sell, it is mentioned that party of the second part (plaintiff herein) agrees and assures that they will not request for execution of the sale deed until project is implemented as detailed above. The party of the second part expressly agrees upon intimation of its eligibility for sale deed by the party of the First part, to take the Sale deed and take steps for registration of the same within one month of such intimation by the party of the first part.

26.In the instant case, it is clear that as the defendants have cancelled the agreement of sale by issuing cancellation cum resumption notice, no sale deed was executed. As per section 54 of Transfer of

Property Act, 1882, “A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It is further mentioned in the section 54 of the said Act, that contract for sale of immovable property does not, of itself, create any interest or charge on such property.” In the instant case, there is no regular sale deed executed in favour of the plaintiff and agreement sale stands cancelled as seen from Ex.A-1 notice. Hence when not sale deed was executed in favour of plaintiff, it is presumed that the defendants are owners of the schedule mentioned property and

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as such even though the plaintiff is in possession and enjoyment of the suit schedule property, no injunction can be granted against the defendants as they are true owners of the schedule mentioned property.

27.Hence considering the above, the plaintiff is not entitled for thxe grant of permanent injunction also and as such issue No.2 is answered in favour of plaintiff while issue No.5 is answered against the plaintiff.

28.Issue No.6: To what relief?

Considering the findings to issues No.1 to 5, even though the issue No.2 is answered in favour of the plaintiff, issue Nos. 1, 3 to 5 are answered against the plaintiff and in favour of the defendants and as such the plaintiff is not entitled for relief of declaration that Ex.A-1 notice is illegal, arbitrary, capricious and against the natural justice or for the grant of permanent injunction and as such the suit is liable to be dismissed.

29.Result:

In the result the suit is dismissed without costs.

Dictated to the Steno on Laptop, corrected and pronounced by me

in open court, this 2nd day of May, 2017.

Sd/- V.Lakhmi Rajyam,

Principal Junior Civil Judge,

Bobbili.

Appendix of evidence

Witnesses examined

For Plaintiff: PW-1: Mahesh Agarwal

For Defendants: DW-1: Patagarla Madhan Mohan (Eschewed) DW-2: M.V.Karunakar

Documents marked

For Plaintiff: Ex.A-1: Original cancellation cum resumption notice dated 21.8.2014 issued by D-1 to PW-1.

Page 21 of 22

O.S.No.125/2014

Ex.A-2: Certified copy of the registered agreement of sale dt.1.3.2008 executed between PW-1 and D-1. Ex.A-3: Office copy of reply notice dated 4.6.2012 issued by PW-1 to D- 1. Ex.A-4: Postal acknowledgment showing the service of Ex.A-3 notice to D-1.

For Defendants:

Ex.B-1: Attested copy of the Receipt bearing No.1310002 dt.30.4.2008 issued by Deputy Zonal Manager (AM) APIIC Ltd., Industrial Estate, Vizianagaram in favour of M/s. Sri Ganesh Sai Tyre Works and Retrading towards water charges. Ex.B-2: Attested copy of the Receipt bearing No.1310003 dt.30.4.2008 issued by Deputy Zonal Manager (AM) APIIC Ltd., Industrial Estate, Vizianagaram in favour of MNR Refractories towards water charges arrears. Ex.B-3: Attested copy of the Receipt bearing No.1310004 dt.30.4.2008 issued by Deputy Zonal Manager (AM) APIIC Ltd., Industrial Estate, Vizianagaram in favour of Sri Venkateswara Industries towards water charges. Ex.B-4: Attested copy of letter dt.21.3.2016 issued by the Assistant Engineer (Operation Section) D.1, APEPDCL, Bobbili to PW-1.

Sd/- V.Lakhmi Rajyam,

Principal Junior Civil

Judge,

Bobbili.

Page 22 of 22

1

IN THE COURT OF THE 1st ADDL. JUDICIAL MAGISTRATE OF I CLASS-CUM- 1st

ADDITIONAL JUNIOR CIVIL JUDGE, VIZIANAGARAM

Present: Smt. V.Lakshmi Rajyam, 1st Addl. Judicial Magistrate of I Class, -cum- 1st Addl.Junior Civil Judge, Vizianagaram

Tuesday, this the 14th day of August, 2018.

C.C.No.138 of 2016

Between:

State, represented by the Sub-Inspector of police, Women Police Station. Vizianagarm.

..Complainant.

And.

1. Vaka Mrutyunjaya Rao, s/o. Simhachalam, age 33 years, R/o.Mangali Street, Jami village.

2. Vaka Chandramma @ Chittamma, w/o. Simhachalam, age 60 years, R/o.Manali Street, Jami village.

3. Vaka Simhachalam, s/o. Late Somulu, age 70 years, R/o.Mangali Street, Jami village.

4. Bandaru Krishnaveni, w/o. Krishna, age 43 years, R/o. Stadium cololny, Vizianagaram.

5. Vaka Vijayalaxmi, d/o.Simhachalam, age 39 years, R/o. Mangali street, Jami.

..Accused.

This case coming on 13-08-2018 for final hearing before me in the presence of Assistant Public Prosecutor for State and of Sri A.Satyajee, Advocate for accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following:

JUDGMENT

1. The accused was tried for the offence punishable under Section 498-A of IPC and Section 3 and 4 of Dowry Prohibition Act,1961.

2. The Sub-Inspector of police Women Police Station, Vizianagaram originally filed charge sheet against the accused in Crime No.87/2016 for the offence under

Section 498-A of IPC and Section 3 and 4 of Dowry Prohibition Act,1961, with the following allegations: the marriage of Tamatapu Aruna held on 16.10.2011 with in

Ananda Gajapathi Auditorium, Vizianagaram according to their caste and custom in the presence of their elders, at the time of marriage, the father of Tamatapu Aruna gave an amount of Rs. 9 lakhs dowry, two tulas gold chain, two tulas gold bracelet and ½ tula gold ring to A.1 on demand of A.1 to A.3 , the father of Tamatapu Aruna 2 adorned 5 tulas gold ornaments to Tamatapu Aruna, after marriage she joined in marital life with A.1, after some period A.1 demanded Tamatapu Aruna for a house site, on that her father purchased a house site to an extent of 267 sq.yards at

Gayathri Nagar, Vizianagaram and registered in the name of A.1 , Tamatapu Aruna and A.1 living in Cheepurupalli in a rented house where A.2, A.3 and A.5 harassed

Tamatapu Aruna mentally with sarcastic words that Tamatapu Aruna brought less dowry and if they performed the marriage of A.1 with another lady they may get huge dowry, A.4 used to utter with A.1 to give divorce to Tamatapu Aruna and marry her daughter, A.1 always suspected the character of Tamatapu Aruna and whenever she speaks with others, A.1 attributed her illicit contacts and accused also spread rumors that Tamatapu Aruna is having illicit contacts, later Tamatapu Aruna conceived pregnancy and returned to her parents house for delivery then A.1 shifted house from Cheepurupalli to A.4’s house at Vizianagaram, during that period A.1 demanded Tamatapu Aruna to bring additional dowry of Rs.4 lakhs with instigation of A.2 to A.4 , Tamatapu Aruna gave birth to a male child on 19.08.2012, but accused never go to see Tamatapu Aruna and thereby neglected her at her parents to her fate and refused to take back to their house, but A.1 did not heed her words. On that

Siripurapu Venkatarao, Penta Satyarao and Kottana Rama Satyam held panchyat and tried to pacify their disputes, but the accused attributed illicit contacts to Tamatapu

Aruna and refused to take back her to their house.

Basing on the report of defacto complainant Tamatapu Aruna, Sri A.Venkata

Rao– Sub-Inspector of Police, Women Police Station, Vizianagaram registered a case in Cr.No.87/2015 under section 498-A of IPC and Section 3 and 4 of Dowry

Prohibition Act,1961 of Women Police Station and investigated into. During the course of investigation the Sub-Inspector of Police examined witnesses and recorded their statements under section 161(3) Cr.P.C. issued notice to the accused under section 41(A) (1) Cr.P.C., and after completion of investigation the Inspector of Police filed charge sheet. Hence, the charge.

3

3. The cognizance of offence was taken by the Additional Judicial Magistrate of I

Class, Vizianagaram under section 498-A of IPC and Section 3 and 4 of Dowry

Prohibition Act,1961 against the accused 1 to 5.

4. On the first appearance, the accused was furnished with copies of documents them as contemplated U/S. 207 Cr.P.C.

5. On the next hearing, the accused were examined U/Sec. 239 Cr.P.C. Upon hearing charges have been framed against the accused for the offences under section 498-A of IPC and Section 3 and 4 of Dowry Prohibition Act,1961. The charges were read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined P.W.1 to PW.6 and got marked Exs.P1 and P.2.

7. After closure of prosecution side evidence, the accused were examined

U/s.313 Cr.P.C and the incriminating evidence appearing against them was put to them. The accused are denied the same and reported no defence evidence.

8. Heard arguments of both sides and perused the record on hand.

9. The points for determinations are, the offences leveled against the accused is under Section 498-A of IPC and Section 3 and 4 of Dowry Prohibition Act,1961. To prove the guilt of accused for the alleged offence, the prosecution has to prove the essential ingredients of Section 498-A of IPC and Section 3 and 4 of Dowry

Prohibition Act,1961 of IPC viz.,

1) That on 16.10.2011 the accused 1 to 5 being the husband and relatives of husband of P.W.1 demanded and took Rs. 9 lakhs dowry, two tulas gold chain, two tulas gold bracelet and ½ tula gold ring to

A.1 and further demanded Rs.4 lakhs as well as took 267 sq.yards at

Gayathri Nagar, Vizianagaram from the parents of P.W.1.

2. That A.1 to A.5 on 16.10.2011 and 22.12.2015 harassed P.W.1 mentally and physically by attributing her illicit contacts with her and also demanded Rs.4 lakhs from her parents.

4

POINT No.1:

10. To prove the above said points the prosecution had examined Pws 1 to 6 and got marked Ex.P.1 and P.2.. PW1 is defacto-complainant as well as wife of the accused deposed that A.1 is her husband, A.2 is her mother-in-law, A.3 is father-in- law and A.5 is her younger sister-in-law. She deposed that her marriage with A.1 was performed on 16.10.2011 at Ananda Gajapathi auditorium as per caste custom.

She deposed that at the time of her marriage her parents gave Rs.9,00,000/- towards dowry, two tulas of gold chain, two tulas bracelet, ½ tula of gold ring to A.1 on demand of her in-laws. She deposed that later A.1 used to suspect her whenever she received phone calls, and also raised dispute about her came to home from school in the evening. She deposed that A.1 used to scold her in vulgar language, A.5 and A.4 instigate A.1 to divorce her. She deposed that A.1 also demanded land on his name and according her father also purchased land at Gayatri nagar in an extent of 267 Sq.Yards and registered in the name of A.1, her farther also gave gold ring wg., one tula during Sankranthi festival. She deposed that A.1 used to mentally harassed her, when she was pregnant, after delivery of male child accused did not take her to matrimonial home stating that she is bad character. She deposed that when her parents visit A.1’s house to verify the reason for his absence in naming ceremony of her son, A.2 and A.3 closed your door on the face of her parents. She deposed that in the month of November, 2012 on receipt of information that A.1 received accident and admitted in Tirumala hospital, she went to hospital, but A.2 to A.5 closed the door of room 206, A.1 did not visit to see her son till date after the birth. She further deposed that during Samakya Andhra Bank he saw A.1 at Balaji junction near Yella

Rao temple and questioned about not visiting them since one year on that A.1 slapped her on both cheeks and left from the place. She deposed that A.1 also used to phone contact Residential Teacher, Special Officer informing that she is bad character. She deposed that A.3 filed petition under section 4-1 B under RTI Act for furnishing her salary certificate, A.4 filed a petition u/sec.4-1 B for KGB for job chart.

She deposed that A.4 also filed petition under 4-1B for furnishing details of O.D and 5

Cls,in the month of May, 2013 she went to police station for filing case against accused during which A.1 abused her in filthy language stating that her son is not born out of him, in 2014 he sent divorce notice, she filed present case in Women

Police Station. She deposed that after undergoing much agony caused by A.1 and his family members. She deposed that when counseling was held in Women police station A.1 came to beat her. She deposed that A.1 unnecessarily gets irritated for small issues and creates mess.

11.P.W.2, who is father of P.w.1 deposed that he is a retired Lecturer and PW.1 is his daughter. T.Satyavathi (P.W.3) is his wife. A1 is his son-in-law, A2 and A3 are the parents of A.1 while A.4 and A5 are his sisters. He deposed that on 16.10.2011 PW.1 was married to A.1 at Ananda Gajapathi Auditorium , Vizianagaram as per their caste customs and at the time of their marriage she presented Rs.9 lakhs towards dowry, 2 tulas of gold bracelet, 2 tulas of gold chain, ½ tula gold ring to A1 on the demand made by A1 to A3. He deposed thati immediately after the marriage, PW.1 joined in conjugal society of A.1 at Jami village and resided there for one week. He deposed that thereafter for 10 days, PW.1 and A.1 used to go to their work places and come back at Jami or Vizianagaram. He deposed that PW.1 used to work Contract

Residence Teacher at Cheepurupalli where as A.1 used to work as School Assistant (Maths) at ZP High School, Alugolu. He deposed that after 10 days, PW.1 and A.1 shifted their residence to Cheepurupalli village. A2, A3 and A5 used to visit the house of A.1 and PW.1 and in that course they used to tell tales against Pw.1, due to which

A.1 used to abuse PW.1. He deposed that they used to abuse PW.1 that if they performed the marriage of A.1 with another woman, they would have got more dowry. He deposed that A.4 also used to visit the house of A1 and abused PW.1 in the same way. He deposed that further she used to state that if she performed the marriage of her own daughter with A1, it would be better. He deposed that at that time PW.1 became pregnant. Pw.1 gave birth to son on 19.08.2012 at Jyothi Nursing

Home. He deposed that A.1 visited said hospital after delivery, but after 10 days he again visited PW.1 and at that time he blamed PW.1 that PW.1 has illegal intimacy with some one and that he is not willing to take her back. He deposed that the 6 accused did not attend the naming ceremony of his grand-son. He deposed that thereafter also even though he raised disputes before elders like Siripurapu Srinivasa

Rao, Sriripurapu Venkata Rao, Penta Satya Rao , Kotana Rama Satyam on several occasions but did not do so. He deposed that he also raised dispute before the surpanch of Jami village, but in vain. He deposed that A1 used to suspect PW.1 and he used to enquire with the staff members of PW.1 about her illegal intimacy. He deposed that in the month of July, 2012 on the demand of A.1, he have got registered site of 265 Sq. Yards situated at Gayatri Nagar, Vizianagaram in the name of A.1. He deposed that A1 to A5 demanded additional dowry of Rs.4 lakhs and the same was informed by PW.1 to him. He deposed that on one occasion when met with an accident and got admitted at Tirumala Nursing Home, A2 to A5 did not allow him to see him when he went there. He deposed that when he tried to see him with the help of a nurse, A1 replied that he will commit suicide from falling from bricks if PW.1 comes to see him. He deposed that they are always ready to send PW.1 to the house of A.1, but, A1 is not willing to take her back. A1 filed a divorce case against PW.1 due to which they were compelled to file this case.

12.P.W.3 who is mother of P.w.1 deposed that she is residing in Vizianagaram, she is a housewife and PW.1 is her daughter, PW.2 is her husband, A.1 is her son-in- law. A2 and A3 are the parents of A.1. A4 and A5 are the sisters of A.1. She deposed that PW.1 was married to A.1 in the year 2011 at Ananda Gajapathi Auditorium,

Vizianagaram and at the time of marriage, they presented Rs.9 lakh towards dowry, 5 tulas of gold i.e. gold chain, bracelet to A.1, 5 tulas of gold to PW.1. they also presented a 275 sq yards site situated at Gayatri Nagar in the name of A.1 and immediately, after marriage, PW.1 joined A.1 at Cheepurupalli and resided there for about 6 months. She deposed that at that time PW.1 get pregnant and PW.1 used to work as Teacher in Kasturibhai School, Cheepurupalli and when she was 8 months pregnant, they brought PW.1 to their house for her delivery and thereafter, she gave birth to one son on 19.8.2012. She deposed that while residing at Cheepurupalli

PW.1 and A.1 used to visit the house of the other accused at Jami frequently. She deposed that A.1 was present at the time of PW.1’s delivery and after being 7 discharged from the hospital, PW.1 came to their house, but A.1 went away by having an altercation stating that Pw.1 is not having good character and that he does not want her. Stating the same, She deposed that A.1 bet PW.1 and went away leaving her. After 15 days, PW.2 and their relatives went to the house of accused, but, the accused did not open the doors and while residing at Cheepurupalli, PW.1 used to inform her that A.1 is demanding the site, and they went to the house of accused for about 4 or 5 occasions, but, the accused are not willing to take back PW.1 to their house. She deposed that A4 and A5 used to abuse PW.1 that they would have got more dowry, if A.1 was married any other woman. Even in the counseling made in the Police Station., A1 refused to take back PW.1 stating that PW.1 is not having good character.

13.P.W.4 who is elder sister of P.W.1, P.w.2 is her father, P.w.3 is her mother, A.1 is her brother-in-law, A.2 and A.3 are the parents of A.1. A.4 and A.5 are the sisters of P.w.1. She deposed that PW.1 was married to A.1 on 16.10.2011 at Ananda

Gajapathi Auditorium, Vizianagaram and at the time of marriage, they presented Rs.9 lakh towards dowry, 2 tulas of gold chain, 2 tulas of gold bracelet 1/2 tula gold ring to

A.1, 5 tulas of gold to PW.1, immediately, after marriage, PW.1 joined A.1 at

Cheepurupalli and resided there for about 4 months happily, even though PW.1 used to take proper care of her in-laws, hearing the words of his mother and sister, She deposed that A1 used to abuse PW.1 stating that she does not know doing household duties and that she will not look after his sisters properly and A2, A3 and A5 who was unmarried, used to tell tales to A.1 against PW.1 stating that he will get more dowry if he had married any other woman and as the accused were stating that the dowry and other presentations given them were not sufficient, her father presented 1 tula gold chain to A.1 at the time of Pongal festival of 2012, and A.1 was not satisfied with the said gold chain, on that her father presented 267 sq. yards situated at Gayatri Nagar in the name of A.1. She deposed that the accused were not satisfied with that also and they demanded Rs.4 lakhs as additional dowry and at that time, PW.1 get pregnant, PW.1 used to work as Teacher in Kasturibhai School, Cheepurupalli and when she was 6 months pregnant, they brought PW.1 to their house for her delivery.

8

She deposed that taking advantage of the absence of PW.1, A2 to A5 used to state to

A.1 that PW.1 is not fit for him and that he would get more dowry, if he was married to any other woman and further they used to suspect the character of PW.1 and A1 used to harass PW.1 mentally by suspecting her character. She deposed that A1 used to harass PW.1 mentally and physically at the instance of his sisters and on one occasion, he bet PW.1. She deposed that PW.1 gave birth to one son on 19.8.2012.

After the birth of his child A1 came to their house for one time only and since then, none of the accused came to see the son of PW.1 and on one occasion, when her father sent their relatives to the house of accused, the accused did not allow them in to their house and further closed their doors. She deposed that A1 used to abuse that the said son was not born to him. In January, 2012, when PW.1 was admitted in a coaching center, A.1 asked to not to talk with any one. She deposed that when she questioned him as to why he was saying such words, he altercate with them, and A1 had taken away the gold adorned to PW.1 stating that he wants to apply for loan and on one occasion when PW.1 was pregnant, She deposed that due to the differences between pW.1 and A.1, A1 had beat PW.1 by hitting her on her leg with a rod of the bed.

14. P.w.5 who is one of the elders of marriage of P.W.1 and A.1 and deposed that she know PW.1 and all the accused. PW.1 was married to A.1 on 16.10.2011 at

Ananda Gajapathi Auditorium, Vizianagaram. She deposed that she attended their marriage, she is the senior paternal aunt of PW.1 by courtesy. She deposed that at the time of marriage, parents of PW.1 presented Rs.9 lakhs cash towards dowry, one gold chain, one gold bracelet and 1/2 tula gold ring , total 3 tulas to A.1 and further adorned 5 tulas of gold ornaments to PW.1. She deposed that immediately after her marriage, PW.1 joined A.1 at her in laws house in Jami village. She deposed that thereafter, PW.1 and A1 shifted to Cheepurupalli as PW.1 was working at

Cheepurupalli and A.1 was working at Alugolu. A.5 who is sister of A.1 used to reside along with PW.1 and A1 at Cheepurupalli. Right from the marriage, A.1 used to harass PW.1 by beating and abusing her stating that the amount of dowry brought by her does not sufficient and that she has to bring additional dowry of Rs.4 lakhs. She 9 deposed that A2 to A5 also demanded additional dowry from PW.1, in the meantime,

PW.1 became pregnant. She deposed that A1 used to beat and abuse PW.1 for six months stating that her parents did not give additional dowry or at least site to him.

She deposed that thereafter, PW.1 came back to her parental house for delivery. In the absence of PW.1, A1 had vacated their house in Cheepurupalli and went to the house of A.4 and started residing there. She deposed that the Parents of PW.1 gave 267 sq yards of site situated at Gayatri Nagar, Vizianagaram to A.1 and got the same registered in his name. She deposed that thereafter, PW.1 gave birth to one son. A1 was present at the time of delivery of PW.1, but, thereafter, none of the accused came to see PW.1 or her son and they left them at their parental house. She deposed that when PW.1’s father gave telephone call to A.1 and requested him to come for the naming ceremony of A.1’s son, A.1 refused stating that character of PW.1 was not good and that he is not intending to take back PW.1 to his house. She deposed that when the parents of PW.1 raised disputes before A.2 and A.3, A.2 and A.3 also stated that they are not wiling to take back PW.1 to their house as her character was not good. She deposed that PW.1 used to inform her about the harassment of A.1.

She deposed that even though they waited for two years for the arrival of accused and also raised disputes before elders, the accused did not take back PW.1 to their house. She deposed that the accused used to suspect PW.1 stating that she is taking to male colleagues. She deposed that P.W.1 gave report to police.

15. P.W.6 who is investigating Officer in this case deposed that he is working as

Sub-inspector of Police, Women Police station, Vizianagaram from September,2012.

He deposed that on 26.12.2015, at 11:00 am, while he was present in the Police

Station, PW.1 came to the Police Station. and presented a report, basing on it, he registered a case in Cr.No.87/2015 u/s. 498-A IPC and Sec.3 & 4 of D.P.Act and issued FIR(Ex.P.2). He deposed that on the same day, he had examined Pws. 1 to 4 and recorded their statements. He deposed that on 27.12.2015 he had examined

PW.5, LW.5-S.Venkata Rao, LW.6-S.Venkata Rao, Lw.7-P.Satya Rao, LW.9-

S.Srinivasa Rao and recorded their statements. He deposed that on 28.12.2015, at 10 10:00 am, he issued Notice u/s.41(A)(1) Cr.P.C. to the accused. He deposed that after completion of investigation, he filed charge sheet against the accused.

16. Considering the above evidence of P.Ws.1 to 6, the evidence of P.Ws.1 to 4 shows that they belongs to the same family. P.Ws.2 and 3 are the parents of P.w.1 while P.W.4 who is elder sister of P.w.1. likewise P.W.5 is the senior paternal aunt of

PW.1 by courtesy. Though P.Ws.1 to 5 deposed that at the time of P.W.1 marriage the parents of PW.1 presented Rs.9 lakhs cash towards dowry, one gold chain, one gold bracelet and 1/2 tula gold ring , total 3 tulas to A.1 and further adorned 5 tulas of gold ornaments to PW.1. Thereafter on demand made by the accused, the father of P.W.1 purchased a house site to an extent of 267 sq.yards at Gayathri Nagar,

Vizianagaram and registered in the name of A.1, the said site was purchased by him with his own income. Admittedly the prosecution did not file any document to show that the said site was purchased by P.w.2 and 3 in the name of A.1. Further more, the evidence of P.ws.4 and 5 shows that they came to know about the alleged harassment of A.1 to A.5 towards P.w.1 only through her parents. P.w.5 during her cross-examination deposed that she never personally requested A.1 to take PW.1 back to his house, but, PW.1’s parents used to request him. She deposed that PW.1 used to inform her about the harassment of A.1 and thereafter, PW.1’s parents also informed her about it. Likewise P.W.4 also admitted that they came to know about the alleged harassment of A.1 to A.5 towards P.w.1 only through P.Ws.1 and 2. She voluntarily deposed that she has got personal knowledge about such harassment.

Even though P.w.4 deposed that she has got personal knowledge about such harassment, she admitted that she did not state before police that A.1 used to abuse

PW.1 and she further stating that she has not doing household duties. Further more the evidence of P.Ws.1 to 3 shows that they have resided from their own resident.

During their further cross-examination which was held on 31.07.2018 when they are recalled in Crl.MP.No.7422/2018 and in such cross-examination admitted that the accused never harassed P.w.1. They further admitted that the accused never harassed P.w.1. They further admitted that they have compromised with the accused and divorce petition was filed by A.1 and the same was allowed by Honourable Family 11

Court. Further admitted that the FCMC/25/2014 was also compromised. P.W.1 and

A.1 agreed to live separately from each other. Hence, ultimately the evidence of

P.Ws.1 to 3 shows that they did not support the case of the prosecution and deposed that the accused never harassed P.w.1.

17.Considering the above evidence P.Ws.1 to 3 even though P.Ws.1 to 3 did not support the case of the prosecution , during their further cross-examination which was held that on 31.07.2018, that part of the evidence which is supporting the case of the prosecution can be taken into consideration has held by the Honourable Apex

Court in many decisions. Now let us see whether the prosecution could prove the guilt of the accused for the above said offence by examining P.Ws.1 to 6 or not.

During the evidence of P.Ws.1 to 5 more particularly P.Ws.1 to 3, P.Ws.1 to 3 have deposed that on the demand made by the accused, P.Ws.2 and 3 presented Rs.9 lakhs cash towards dowry, one gold chain, one gold bracelet and 1/2 tula gold ring , total 3 tulas to A.1 and further adorned 5 tulas of gold ornaments to PW.1 and that thereafter on demand made by the accused, the father of P.W.1 purchased a house site to an extent of 267 sq.yards at Gayathri Nagar, Vizianagaram and registered in the name of A.1 and that after delivery of P.W.1, the accused started harassing P.W.1 stating that she is a bad character and that the said son of P.W.1 was not born to A.1.

18. The evidence of P.w.1 shows that A.1 used to harass P.W.1 by suspecting her. P.w.1 during her evidence deposed that in the month of May, 2013 she went to police station for filing case against accused during which A.1 abused her in filthy language stating that her son is not born out of him. She deposed that in the year 2014 he sent divorce notice, she filed present case in Women Police Station. She deposed that after undergoing much agony caused by A.1 and his family members.

She deposed that when counseling was held in Women police station A.1 came to beat her. Hence, the evidence of P.W.1 shows that in May,2013 P.w.1 approached

Police Station for filing case against the accused vide Ex.P.1. Admittedly Ex.P.1 given on 26.12.2015 but not in the year 2013 or 2014. Hence, what happened the said report given by P.w.1 in May,2013 is not mentioned anywhere. Admittedly Ex.P.1 was given after filing of divorce petition by A.1 but P.w.1 admitted that in Ex.P.1 she 12 is had not mention about filing of divorce petition by the accused and also about

Maintenance Case filed by her. She deposed that she had filed M.C petition for her and for her son in the Honourable Family Court, Vizianagaram on 30.06.2014 and that the said petition was filed after the accused filed divorce petition, she admitted that maintenance petition filed by her there was no mention about the fact of dowry as well as the alleged harassment made by accused. Hence, if really the accused have demanded or taken any dowry amount and also harassed P.W.1 for anything, naturally there will be mentioned of the same in the maintenance petition, but categorically P.W.1 admitted that there was no mention about the fact of dowry and alleged harassment of the accused in her maintenance petition. P.Ws.1 to 3 admitted that P.w.1 filed this case only after A.1 filed the divorce petition. In fact P.w.2 deposed that A.1 filed divorce case against P.w.1 due to which they were compelled to file this case. P.W.2 admitted that in February,2014 A.1 has sent a notice to P.w.1 seeking divorce and after that on 30.06.2014 P.W.1 filed Maintenance Case before the

Honourable Family Court, Vizianagaram. He admitted that no document was

executed at the time of giving dowry amount, gold or other presentations to the accused. He further admitted that Pw.1 gave birth to a son on 16.08.2012 at Jyothi

Nursing Home, Vizianagaram and A.1 used to visit P.W.1 in the said hospital for about seven days after the delivery. He deposed that after delivery of P.W.1 he did not send

P.w.1 to her in-laws house. Further he deposed that on 30.08.2012 A.1 came to his house with a slip about date of naming ceremony of his son but he quarreled with them and went away. He deposed that they did not issue any notice to A.1 requesting him to take back P.W.1 to his house. He deposed that after delivery , P.W.1 used to operate a school in Cheepurapalli from their house as A.1 did not take back at

Anjaneyapuram. P.W.2 further deposed that he did not take P.w.1 to the house of A.1 for dropping her.

19. Hence, the above evidence of P.W.2 who is father of P.w.1 clearly shows that

A.1 present at the time of delivery of P.W.1 and thereafter A.1 came to their house for conforming name of the son of A.1 and P.w.1, but thereafter P.W.1 or P.W.2 did not make any efforts for sending P.w.1 back to the house of A.1. In fact according to 13

P.w.1, she did not issue any notice to A.1 for not taking her back to his house as she was waiting for A.1 to take her to his house. She denied the suggestion of defence that A.1 approached her on several occasions for taking her back to his house and that she requested to join him. She voluntarily deposed that from 30.08.2015 A.1 never approached her. Hence the evidence of P.w.1 shows that prior to 30.08.2015

A.1 used to approach her but thereafter he did not do so. Hence, the allegation that since the birth of A.1’s son, A.1 or his family members did not care for welfare of

P.w.1 or her son is not correct. Admittedly between 2012 and 2015 P.w.1 or her parents did not take any efforts for sending back P.w.1 to the house of A.1 and at least did not issue any notice for demanding him to take back P.w.1 to his house. On the other hand, P.w.4 admitted that A.1 had file divorce petition against P.w.1 on the allegation that P.w.1 is not join him. She admitted that after filing of the said divorce petition P.W.1 filed Maintenance Petition , thereafter she filed this case. Hence, the above allegation of Ex.P.1 and the evidence of P.ws.1 to 5 shows that the present case was filed by P.w.1 only after filing divorce petition by A.1. As noted above there is no mention about the divorce petition in Ex.P.1 and further more there is no mention about the presentation of dowry and alleged harassment of accused in the maintenance petition filed by P.w.1. P.W.1 did not make any efforts to join A.1 after her delivery. Further more even though P.Ws.1 to 5 more particularly P.w.4 deposed that A1 had beat PW.1 by hitting her on her leg with a rod of the bed and the prosecution did not file any medical certificate to that effect. Hence, there is doubt regarding the case of the prosecution whenever there is an amount of doubt regarding the guilt of the accused the accused is give benefit of doubt. Hence, the prosecution could not proved the guilty of the accused for the above said offence.

Hence, the above said points 1 and 2 are answered against the prosecution in favour of defence.

20.POINT NO.3:-

Considering the finding of above said the prosecution could not prove the guilt of the accused for the offence under section 498-A of IPC and section 3 and 4 of 14

Dowry and Prohibition Act beyond reasonable doubt and as such the accused is entitled for clean acquittal.

21.In the result, Accused 1 to 5 are found not guilty for the offence punishable u/sec. 498-A of IPC and Section 3 and 4 of Dowry Prohibition Act, accordingly he is acquitted u/sec.248 (1) Cr.P.C. for the above said offences. No case property is produced before this Court, hence there is no order regarding case property. The accused are ordered to continue on bail for about 6 months and directed to execute bond for Rs.5,000/- (Rupees five thousand only) under section 437-A Cr.P.C, to appear before Appellate Court, if any appeal is preferred.

Dictated to Stenographer Gr.III, transcribed by him, corrected and

pronounced by me in open court, this the 14th day of August, 2018.

Sd/-

1st Addl. Judicial Magistrate of I Class, -cum-1st Addl.Junior Civil Judge, Vizianagaram Appendix of Evidence Witnesses Examined

For Prosecution:- For Defence:- None. P.W.1: T.Aruna, P.w.2: T.Surya Rao. P.W.3: Thamatapu Satyavathi. P.W.4: Siripurapu Rupa. P.w.5: Kottana Rama Satyam, P.W.6: A.venkata Rao, S.I of Police

Exhibits Marked

For Prosecution:- Ex.P.1: Complaint of P.W.1 Ex.P.2: Original F.I.R.

For Defence: Nil M.Os.Marked -Nil-

Sd./- V.Lakshmi Rajyam Addl. Judicial Magistrate of I Class, -cum-Addl.Junior Civil Judge, Vizianagaram 15

Calendar and Judgment Calendar cases tried by the 1st Addl. Judicial Magistrate of I Class, -cum- 1st Addl.Junior Civil Judge, Vizianagaram. -------------------------------------------------------------- Date of offence: Prior to 26.12.2015 Date of report or complaint: 26.12.2015 Date of apprehension of accused: 28.12.2015 (S. 41 (A) Cr.P.C.otice served on accused) Date of release, if any on bail: – Date of commencement of trial: 04-01-2017 Date of close of trial: 05-07-2018 Date of sentence or order: 14-08-2018 --------------------------------------------------------- Explanation for delay and remarks:- The prosecution did not produce its witnesses from time to time, and hence the delay in disposal of the case.

Calendar and Judgment in C.C.No.138/2016 on the file of the Addl., Judicial

Magistrate of I the Class, Vizianagaram.

Complainant:- State represented by the State, represented by the Sub-Inspector of Police, Women Police Station, Vizianagaram. in Cr.No.87/2016. Particulars of the accused:

1. Vaka Mrutyunjaya Rao, s/o. Simhachalam, age 33 years, R/o.Mangali Street, Jami village.

2. Vaka Chandramma @ Chittamma, w/o. Simhachalam, age 60 years, R/o.Manali Street, Jami village.

3. Vaka Simhachalam, s/o. Late Somulu, age 70 years, R/o.Mangali Street, Jami village.

4. Bandaru Krishnaveni, w/o. Krishna, age 43 years, R/o. Stadium cololny, Vizianagaram.

5. Vaka Vijayalaxmi, d/o.Simhachalam, age 39 years, R/o. Mangali street, Jami ________________________________________________________________________________ Offence :- Husband or relative of husband of a woman subjecting her to cruelty u/sec.498-A IPC Penalty for giving or taking dowry u/Sec. 3 of D.P.Act Penalty for demanding dowry u/S. 4 of D.P.Act

Finding:- Found not guilty for the offences u/Sec. 498-A of IPC, and section 3 and 4 of Dowry Prohibition Act

Sentence:- The Accused 1 to 5 are found not guilty for the offence punishable u/sec. 498-A of IPC and Section 3 and 4 of Dowry Prohibition Act, accordingly he is acquitted u/sec.248 (1) Cr.P.C. for the above said offences. No case property is produced before this Court, hence there is no order regarding case property. The accused are ordered to continue on bail for about 6 months and directed to execute bond for Rs.5,000/- (Rupees five thousand only) under section 437-A Cr.P.C, to appear before Appellate Court, if any appeal is preferred.

Sd./- V.Lakshmi Rajyam Addl. Judicial Magistrate of I Class, -cum-Addl.Junior Civil Judge, Vizianagaram

O.S.No.143/2012

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :BOBBILI

Present: Smt.V.Lakshmi Rajyam,

Principal Junior Civil Judge, Bobbili

Tuesday, the 2nd day of May, 2017

O.S.No.143/2012

Between: Sri Pawan Kansaria S/o Sri Durgadathji Kansaria, Hindu, Aged 58 Years, Proprietor of M/s. Balaji Industries, Resident of 401, 4th Floor, Radhika Residency, Rockdell Layout, Visakhapatnam.

....Plaintiff.

And:

1) The Deputy Zonal Manager, Andhra Pradesh Industrial Infrastructure Corporation Limited, IDA Industrial Estate, Visakhapatnam.

2) The Manager, Andhra Pradesh Industrial Infrastructure Corporation Limited, Industrial Growth Centre, Bobbili, Vizianagaram District.

....Defendants.

This suit came up on 3.4.2017 before me for final hearing in the presence of Sri.P.M.Sai, Advocate for the plaintiff and Sri. K.Prasada Rao, Advocate for the defendant No.1 and as the 2nd defendant having remained exparte and having stood over for consideration till today, this court delivered the following:

J U D G E M E N T

The plaintiff herein filed this suit for declaration that the letter

dated 12.4.2012 issued by the 1st defendant is illegal, arbitrary and

capricious and not binding on the plaintiff in respect of the plaint schedule land and for consequential relief of permanent injunction restraining the defendants, their men, agents and assignees from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property until he is evicted by due process of law and for costs of the suit.

2.Brief averments of the plaint:

The plaintiff is the proprietor of M/s. Balaji Industries,

Visakhapatnam while the defendants are registered company having its registered office at Hyderabad and the defendants used to sell the lands to various people by developing the same by laying roads, drains

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etc. in the industrial areas. The defendants to develop the area in

Bobbili region, laid some plots in Industrial growth centre, Bobbili. The plaintiff purchased the plot No.147 of the said Industrial growth centre,

Bobbili which is shown in the plaint schedule. The plaintiff purchased the said plaint schedule property from the defendants for a sum of

Rs.4,34,263/- with view to set up a unit for the manufacture of Cotton

Ginning etc. The plaintiff and the 1st defendant entered into an agreement of sale dated 26.6.2007 and the same was registered as document No.3852/2007 in the Sub-Registrar Office, Bobbili and the defendants had handed over the vacant physical possession of the plaint schedule land to the plaintiff on 26.6.2007 itself. At the time of registering the agreement of sale, the defendants have assured to lay the road and drain and develop like anything. Believing the version of the defendants, the plaintiff paid entire sale consideration and obtained physical possession of the plaint schedule land. The plaintiff, in pursuance of the agreement of sale and possession of the plaint schedule property, applied for supply of electricity etc., but the

Electrical Department informed that so far the defendants have not paid amount to lay High tension wires and high load transformers etc. in the said growth centre. The plaintiff contends that the defendants’ organization has allotted nearly 400 acres of land to some companies in the year 2006-07 and expecting about the major industries will come to

Industrial growth centre, Bobbili, the plaintiff purchased the plaint schedule property for setting up industry and approached the bank for financial aid to the said industry. The bank people assured that if major industries come to growth centre, the small industries will be benefited and further assured to give financial aid to the industry but so far no major industry has come up. So the bank people have not considered

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about financial aid to the plaintiff and application is still pending with the bank. The plaintiff further contends that at the time of sale, the defendants assured that they will lay roads, drains, provide water supply and power supply in the areas, but the defendants failed to do so for the reasons best known to them. The plaintiff contends that he is ready and willing to complete his project work if the defendants provide road, drains, water and power supply in the locality. He further contended that the defendants without providing amenities as mentioned above and assured by them at the time of sale quite contrary to the understandings and assurances illegally issued a letter

dated 12.4.2012 to cancellation of allotment of plot. He further

contended that he issued a reply and requested the authorities not to cancel the agreement. He contended that the said letter dated 12.4.2012 is not binding on the plaintiff and the same is issued against the rules and regulations, is illegal and unfair and against the principles of natural justice and interfering with the plaint schedule property. He contended that the plaintiff however could successful resist the same, but the defendants are threatening to dispossess the plaintiff illegally by taking law into their hands. He contends that if the defendants have to recover the possession, they have to approach the competent court by filing suit etc. and they cannot take law into their hands. He contended that he paid entire sale consideration and no amount is due to the defendants’ company by the plaintiff. Hence he filed this suit for declaration stating that the letter dated 12.4.2012 is arbitrary, capricious, illegal and against the natural justice and for consequential relief of permanent injunction restraining the defendants, their men, agents etc., from ever interfering with the possession of the plaintiff in

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respect of the plaint schedule land until he is evicted by due process of law.

3.On receipt of notices, the 1st defendant made his appearance and

Sri K.Prasada Rao, Advocate filed Vakalatnama on behalf of the 1st defendant. Even though summons were served to the 2nd defendant on 11.9.2012, the 2nd defendant was called absent, no representation on his behalf and hence the 2nd defendant was set exparte to the proceedings on 5.10.2012.

4.The 1st defendant filed detailed written statement. In such written statement, the 1st defendant has denied all the allegations made in the plaint. The 1st defendant contended that the plaintiff had submitted an application for allotment of site for establishment of industry and accordingly he got the site for cheaper rate and also executed registered agreement of sale dated 26.6.2007. He contended that as per the agreement of the sale, the plaintiff has to start construction within 6 months from the taking possession of the plaint schedule property. He contended that the plaintiff had taken delivery of the plaint schedule property on 26.6.2007. He contended that as per clause (8) (c) of the Registered Agreement of sale, the plaintiff had to complete the establishment of industry within two years from the taking possession of the site and to start business and as per the sale agreement, extension of 2 years time is permissible but that time also elapsed. He contended that total 4 years have elapsed but the plaintiff has not at all started any activity in the plaint schedule land and the plaintiff has not started even building/shed for running the industry and the same was found as vacant site during the course of inspection made by the 2nd defendant and his officials. He contended that they got issued

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show-cause notice dated 12.4.2012 to the plaintiff for cancellation of allotment of site as the plaintiff did not start industry as per terms of the sale agreement for which the plaintiff issued reply with untenable allegations. He contended that as they were not satisfied with the reply of the plaintiff, they issued proceedings for cancellation of the allotment of site i.e., plaint schedule property and ordered for resumption. He contended that the plaintiff grossly violated the conditions of the sale agreement even though they provided all amenities to the plaintiff and he failed to start industry/factory work even though 4 years have elapsed, they issued cancellation of allotment of site proceedings. They contended that there are no merits in the suit and that the court fee paid is not correct. Hence they sought for dismissal of the suit with costs.

5.Basing on the pleadings of both parties the following issues were settled for trial:

1. Whether the plaintiff entered into the premises in the lawful manner or not?

2. Whether the letter dt.12.4.2012 issued by the 1 st

defendant is illegal, arbitrary and capricious?

3. Whether the plaintiff is in possession and enjoyment of plaint schedule property by the time of filing of the suit?

4. Whether the defendants are interfering with the peaceful possession and enjoyment of plaintiff

without following the procedure of law?

5. Whether the plaintiff is entitled for declaration as prayed for?

6. Whether the plaintiff is entitled for permanent injunction as prayed for?

7. To what relief?

6.During the course of trial, the plaintiff-Pawan Kansaria got examined himself as PW-1 and got marked the Original Possession

Certificate dt.26.6.2007 issued by D-1 to PW-1 as Ex.A-1 and Extract of registered agreement of sale dt.26.6.2007 (obtained from Mee-seva) executed between PW-1 and D-1 as Ex.A-2.

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7.After completion of the plaintiff’s side evidence, the 1 st defendant has examined one M.V.Karunakar, the present Branch

Manager of APIIC, Bobbili as DW-1 but no documents were marked on their behalf.

8.Heard arguments of both sides and perused the record.

9.ISSUES NO. 1, 2 and 5:

1. Whether the plaintiff entered into the premises in the lawful manner or not?

2. Whether the letter dt.12.4.2012 issued by the 1 st

defendant is illegal, arbitrary and capricious?

5. Whether the plaintiff is entitled for declaration as prayed for?

10.For the sake of brevity and for avoiding repetition, issues 1 to 6 are dealt in jointly. To prove the above said issues, the plaintiff got examined himself as PW-1. He filed his chief affidavit in lieu of his examination in chief which is nothing but a reiteration of the contents of the plaint. In such evidence PW-1 deposed that he is the proprietor of

M/s. Balaji Industries, Visakhapatnam. He deposed that the defendants are registered as a company having its registered office at Hyderabad and they used to sell the lands to various people by developing the same by laying road, drains etc. in the industrial areas. He deposed that the defendants in order to develop the area in Bobbili region and laid some plots in Industrial Growth Centre, Bobbili. He deposed that he had purchased the plot No.147 in Industrial Growth Centre, Bobbili for

Rs.4,34,263/- with a view to set up a unit for the manufacture of Cotton ginning etc. He deposed that he and 1st defendant entered into agreement of sale dated 26.06.2007 (Ex.A-2) and the same is registered as document No.3582/2007 in the Sub-Registrar office, Bobbili and the defendants have handed over the vacant physical possession of the said

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schedule land to him. He deposed that at the time of registration of the agreement of sale, the defendants assured to lay the road and drain and develop like anything. He deposed that believing the version of the defendants, he paid the entire sale consideration and obtained physical possession of the plaint schedule land. He deposed that in pursuance of the said agreement of sale and possession of the plaint schedule property, he applied for supply of electricity etc, but the department informed him that so far the defendants have not paid amounts to the department to lay High Tension wires and high load transformers etc. in the said growth centre. He deposed that the defendants' organization has allotted nearly 400 acres of land to some companies in the year 2006-07 and expecting that major industries will come to Industrial growth centre, Bobbili, he purchased the plaint schedule land for setting up industry and approached the bankers for financial aid to the said industry. He deposed that the bank people also assured that if the major industries come to growth centre, the small scale industries will be benefited and they assured to give financial aid to the industry. He deposed that but so far no major industry has come up and so the banks people have not considered the financial aid to him. He deposed that the application is still pending with the banks only. He further deposed that at the time of sale, the defendants assured that they will lay road, drains, provide water supply and power supply in the areas, but so far the defendants failed to do so for the reasons best known to them. He deposed that he is ready and willing to complete the project work, if the defendants provide road, drains, water and power supply in the locality.

He deposed that the defendants without providing amenities as mentioned above and assured by them at the time of sale, quite contrary to the understandings and assurances, illegally issued a letter

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dated 12.04.2012. He deposed that the letter dated 12.4.2012 is illegal,

arbitrary and capricious and against the natural justice. He deposed that on 4.6.2012 he issued a reply and requested the authorities not to cancel the agreement. He deposed that the said letter is not binding on him and the same issued against the rules and regulations, is illegal and unfair and against the principles of natural justice. He deposed that the defendants are interfering with the plaint schedule property. He deposed that he could successfully resist the same but the defendants are threatening to dispossess him illegally by taken law into their hands.

He deposed that the defendants company acted illegally and violated the terms and conditions of the understandings and agreement. He deposed that the said letter dated 12.4.2012 is illegal, arbitrary and capricious and against the natural justice. He deposed that the defendants have to take steps under due process of law by filing suit etc and they cannot take law into their hands. He deposed that he paid entire consideration and no amount is due to the defendant company.

He deposed that the defendants company failed to provide minimum infrastructure in the locality to establish the industry. He deposed that defendants company is not cooperating with him to get the electricity and not providing water facility in the area and hence he filed this suit for declaration declaring that letter dated 12.4.2012 is illegal, arbitrary, capricious and against the natural justice and for injunction restraining the defendants, their employees, agents and servant etc., from interfering with his possession in respect of the plaint schedule land, until he is evicted by due process of law.

11.To prove his contention, the plaintiff had filed original Possession

Certificate dt.26.6.2007 issued in favour of P.W.1 as Ex.A-1 and the

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extract of registered agreement of sale dt.26.6.2007 executed between the plaintiff and 1st defendant as Ex.A-2.

12.After the closure of plaintiff’s side evidence, the defendants have examined one M.V.Karunakar, the present Branch Manager of APIIC,

Bobbili as DW-1 but no documents were marked on behalf of the defendants.

13.DW-1 filed his chief affidavit in lieu of his examination in chief. In such evidence he reiterated the contents of the written statement of the 1st defendant. He deposed that he is the 2nd defendant in the above suit. He deposed that the State government has established the growth

Centre at Bobbili with a view to develop this area industrially and financially as this area is a backward area and in order to develop the industries, the Government acquired nearly 800 acres and named the same Industrial growth centre and to encourage the industrial growth centre and industries, the government had given the sites for separate rates and also provided other amenities like water, electricity etc. for establishment of industries in the growth centre by spending crores of public money. He deposed that the plaintiff submitted an application for allotment of site for establishment of industry for cheaper rate and also executed registered agreement dated 26.6.2007 (Ex.A-2). He deposed that as per the agreement of the sale, the plaintiff has to start construction within 6 months from the taking of possession of the plaint schedule property and the plaintiff has taken delivery of the plaint schedule property as on the date of registration of Ex.A-2. He deposed that as per clause (8) (c) of the Registered Agreement of sale, the plaintiff had to complete the establishment of industry within two years from the taking possession of the site and to start business and as per

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the sale agreement, extension of 2 years time is permissible and that time is also elapsed, totally 4 years have elapsed, but the plaintiff has not at all started any activity in the plaint schedule land. He deposed that they have got issued notices to the plaintiff, but the plaintiff did not start even the building/sheds for running the industry and the same is found as vacant site during the course of inspection made by him and his officials. He deposed that they got issued show cause notice dated 12.4.2012 to the plaintiff for cancellation of allotment of site as plaintiff has not started industry as per terms of the sale agreement for which the plaintiff issued reply with untenable allegations and they have not been satisfied with the reply and as such they issued proceedings for cancellation of the allotment of site i.e., plaint schedule property and ordering for resumption. He deposed that the plaintiff failed to obtain electricity connection and water supply connection even though they provided the same. He deposed that as the plaintiff grossly violated the conditions of the sale agreement even though he provided all amenities to the plaintiff, the plaintiff failed to start industry/factory work even though 4 years have elapsed and as such they issued cancellation of allotment of site proceedings. He deposed that there are no merits in the suit and that the court fee paid is not correct.

14.Considering the entire evidence of both parties and Ex.A-1, Ex.A-2, the admitted facts are as follows:

•That the defendants are owners of the suit schedule property; •That the 1st defendant entered into an agreement of sale dated 26.6.2007 (Ex.A-2) with the plaintiff and got registered the same with Sub-Registrar office, Bobbili vide document No.3582/2007; •That the plaintiff purchased the suit schedule property from the defendants for a sum of Rs.4,34,263/- with a view to set up unit for the manufacture of Cotton Ginning etc. and took possession of

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the same on the date of execution of the agreement of sale vide

Ex.A1- possession certificate.; •That the defendants have issued letter dated 12.4.2012 to the plaintiff by cancelling the allocation of plaint schedule property in favour of the plaintiff.

15.Considering the above admitted facts, the plaintiff had filed the extract of registered agreement of sale dated 26.6.2007 (Ex.A2) which shows that the plaintiff had entered into an agreement with the 1st defendant for allotment of plaint schedule property in his favour for the purpose of establishing industry for manufacture of Cotton Ginning etc.

16.A perusal of Ex.A-2 clearly shows that the plaintiff had paid entire sale consideration of Rs.4,34,263/- to the 1st defendant at the time of execution of Ex.A-2 itself. Ex.A-2 further shows that the plaintiff has to start construction of factory building within six months after being put in possession of the same after securing necessary clearances from the competent authorities like Building Plan approvals, filing of application with A.P. Transco, other permissions/clearances etc.

17.A perusal of Ex.A.2-Extract of registered agreement of sale dated 26.6.2007 clause (8) (c) shows that the plaintiff i.e., the party of the second part shall go into commercial production duly erecting machinery and obtaining regular power supply connection with TWO years of being put in possession of the allotted plot/land. It is further mentioned in the clause (8) (c) of Ex.A-2 that any extension of time, if considered, will be subject of levying of penalty at 10% on the land cost at the prevailing rates. No extension for more than 2 years can be entertained.

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18.As per clause (8) (o) of Ex.A-2, “if the party of the Second part commits breach of the covenants herein contained, the allotment stands cancelled and this agreement shall stand determined without any notice thereupon the Party of the Second part will be treated as an encroacher and a trespasser who will have no right whatsoever in the schedule property under these presents and it shall be lawful for the party of the First Part to re-enter upon the said land and resume possession thereof and also of the buildings standing thereon, the transfer made in favour of the Party of the Second Part under these presents shall become null and void and all rights of the Party of the

Second Part in the schedule property under this agreement and any building thereon shall at once cease and determine….. ….. …. “

19.Hence a perusal of Ex.A-2 more particularly clause (8) (c) and (o) clearly shows that the plaintiff has to start construction of building in the allotted site within six months from the date of being in possession of the said building/land and he has to commence business within two years of being put in possession of the allotted building/land. Clause (8)

(o) of Ex.A-2 clearly shows that if the plaintiff commits any breach of covenants mentioned in Ex.A-2, allotment stands cancelled and the agreement shall stand determined without any notice to the plaintiff and the plaintiff will be treated as encroacher and trespasser who will not right over the plaint schedule property. Hence considering the Ex.A- 2 clause (8) (c) it is clear that construction of building/shed must be made within six months of handing over the possession to the plaintiff and the commencement of the business must be done within two years from thereon. However, in the instant case, PW-1 during his cross examination admitted that he had not started construction of any business in the said premises as stipulated in Ex.A-2 Agreement. He

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deposed that he had submitted an application seeking time for establishment of industry only once and that the said application was submitted before expiry of six months from the date of Ex.A-2. He deposed that he submitted the said application in the year 2007. He admitted that growth centre had conceded to his request to grant time for construction of industry, but he did not start any industry even then also. The plaintiff contended and when examined as PW-1 deposed that he could not construct any building or start business in the allotted site due to the lack of infrastructure. He deposed that at the time of agreement of sale, the 1st defendant had assured that he will provide drain, electricity supply, road etc, but they did not do so. In fact, PW-1 during his cross examination voluntarily deposed that as there was no proper infrastructure like road, water supply, power supply he could not establish any industry. The defendant denied the fact that they have not provided any infrastructure as assured by them.

20.DW-1 deposed that even though they have provided infrastructure, the plaintiff failed to start any industry as per the terms of the sale agreement and as such they have issued show-cause notice on 12.4.2012 to the plaintiff for cancellation of allotted site to the plaintiff, but the plaintiff issued reply notice with all false averments and as they were not satisfied with the said reply, they issued proceedings for cancellation of allotment of plaint schedule property. DW-1 deposed that the plaintiff failed to obtain electricity and water supply connections even though they provided the same. Hence considering the above evidence of PW-1 and DW-1, it is clear that only dispute between both the parties is that while PW-1 contends that due to lack of infrastructure assured by the defendants, he could not establish any industry in the allotted site, the defendants denied the same and

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contended that even though they provided infrastructure like water supply, lighting, roads etc., the plaintiff failed to establish industry within stipulated time. Admittedly as per the evidence of PW-1, it is clear that the plaintiff had not started the construction of any building/shed and did not start any industry within 2 years from the date of agreement of sale (Ex.A-2). Further, even though the 1st defendant had granted two years time, even though 4 years have elapsed, the plaintiff failed to complete project work. PW-1 during his evidence deposed that the defendants did not provide any amenities as assured by them. However he deposed that he is ready and willing to complete the work if the defendants provide road, drain and water and power supply in the locality. Hence the above evidence of PW-1 shows that

PW-1 did not start construction or start the industry within 4 years of execution of Ex.A-2. However, he deposed that he has already constructed boundary wall and room level but there is no electricity supply and as such he could not start industry. He admitted that as per

Ex.A-2 Sale agreement if the industry is not started within 2 years from the date of agreement, D-1 can take back purchased suit land from them. He further admitted that after waiting for two years from 2010, the 1st defendant issued resumption notice to him. He admitted that D- 1 had issued about four notices demanding him to start the industry in the purchased site.

21.Considering the above, PW-1 contended that he could not start industry due to lack of infrastructure only. PW-1 deposed that he had constructed boundary wall and room level but as there is no electrical supply he cannot start industry. The defendants more particularly DW-1 denied the same and deposed that they have provided infrastructure.

He admitted that he had provided high tension wire for the purpose of

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power supply to the industry. However, he denied the suggestion of the plaintiff that he did not run HT line to the plaintiff company with the period of 2 years after the sale agreement with the plaintiff and even till today. He voluntarily deposed that they will provide the site to the

APEPDCL for establishing sub-station and that it is for the electrical department to erect sub-station. He deposed that their company is not personally running any HT line or constructing any electrical poles in the plots given to the company.

22.Considering the above evidence of DW-1, it is clear that the defendants are not running any H.T line or constructing any electrical poles and that they will provide site to the APEPDCL for establishing sub-station and it is for the electrical department to erect sub-station.

PW-1 during his evidence deposed that after getting into possession of the suit schedule property, when he applied to supply electricity, the department informed them so far the defendants have not paid amounts to the department to lay high tension wires and high load transformers in the said growth centre. However, even though PW-1 deposed as above, that when he had applied to the electricity department for supply of electricity, the department informed that the defendants have not paid amount to lay high tension wires etc., the plaintiff did not file any document to show that the had approached the electrical department. Furthermore, PW-1 during his evidence deposed that does not have any documentary evidence to show that he had submitted an application to the electricity department. In fact, PW-1 deposed that he had submitted an application to the electrical department but they replied that he has to bear charges for getting electricity connection to his industry. Hence even though PW-1 deposed that he had approached electricity department and made an application

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for supply of electrical connection, there is no documentary evidence to show the same.

23.Furthermore, a perusal of Ex.A-2 registered agreement of sale

dated 26.6.2007 clause (8) © clearly shows that it is for the plaintiff

who has to start commercial production by duly erecting machinery and obtaining regular power supply connection within two years of being put in possession of the allotted plot/land. Hence as per section 8 (c) it is for the plaintiff to obtain regular power supply connection but in the instant case the plaintiff had not at all approached the electrical department or applied for supply for electrical power connection and in turn the plaintiff contends that the defendants have to provide power supply and that the latches are on the part of the defendants. Hence the above evidence of plaintiff and clause 8 © of the Agreement of sale

dated 26.6.2007 clearly shows that latches are on the part of the

plaintiff but not on the defendants.

24. Hence it is clear that there are no latches on the part of the defendants and that latches are on the part of the PW-1 only. If at all really the defendants have not provided any amenities as assured by them at the time of execution of Ex.A-2, the plaintiff ought to have issued notice when he received letter dated 12.04.2012, but he did not do so and he simply waited till 2012. Hence considering the above evidence, as plaintiff did not start any industry or made any construction within two years from the date of execution of Ex.A-2 even though time was extended for a period of 2 years from 2010 and even till today, it is clear that letter dated 12.4.2012 is valid one but not illegal proceedings. The defendants have followed clause 8 (o) and issued letter dated 12.4.2012. As per said clause 8 (o) of the agreement

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of sale dated 26.6.2007 as plaintiff had committed breach some of the covenants i.e., clause 8 (c), agreement stands terminated and the defendants have liberty to resume possession of the plaint schedule property. Hence there is no illegality in issuing letter dated 12.4.2012 and as such the plaintiff is not entitled for the relief of declaration that letter dated 12.4.2012 is illegal, arbitrary, capricious and against the natural justice. Hence issue Nos. 1, 2 and 5 are answered against the plaintiff and in favour of the defendants.

25.Issue No.3, 4 and 6:

3. Whether the plaintiff is in possession and enjoyment of plaint schedule property by the time of filing of the suit?

4. Whether the defendants are interfering with the peaceful possession and enjoyment of plaintiff

without following the procedure of law?

6. Whether the plaintiff is entitled for permanent injunction as prayed for?

26.Coming to the issue No.3, 4 and 6, admittedly, the plaintiff was put in possession of the plaint schedule property on the date of execution of Ex.A-2. In fact, the defendants are not denying the fact that the plaintiff was put in possession of the plaint schedule property on the date of execution of the Ex.A-2 and that he is in possession and enjoyment of the same even till date. DW-1 during his evidence admitted that since the date of handing over the possession to the plaintiff, the plaintiff is in possession and enjoyment of the suit schedule property. He voluntarily deposed that as the suit is pending possession was not taken back from the plaintiff. Hence, possession of the plaintiff over the plaint schedule property is admitted fact. However, as per clause 8 (o) of agreement of sale dated 26.6.2007 as found in Ex.A-2 when the plaintiff commits breach of any of the covenants mentioned in agreement of sale, agreement stands cancelled and the plaintiff will be

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treated as encroacher and trespasser who will not have any right in the plaint schedule property. Admittedly, even though the plaintiff is in possession and enjoyment of the suit schedule property by the date of filing of the suit and even till today, the said clause 8 (o) and Ex.A-2, clearly shows that the plaintiff is treated as encroacher and trespasser who has no right over the plaint schedule property. In fact, as per clause (3) of the agreement to sell, it is mentioned that party of the second part (plaintiff herein) agrees and assure that they will not request for execution of the sale deed until project is implemented as detailed above. The party of the second part expressly agrees upon intimation of its eligibility for sale deed by the party of the First part, to take the Sale deed and take steps for registration of the same within one month of such intimation by the party of the first part.

27.In the instant case, it is clear that as the defendants have cancelled the agreement of sale by issuing cancellation cum resumption notice, no sale deed was executed. As per section 54 of Transfer of

Property Act, 1882, “A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It is further mentioned in the section 54 of the said Act, that contract for sale of immovable property does not, of itself, create any interest or charge on such property.” In the instant case, there is no regular sale deed executed in favour of the plaintiff and agreement of sale stands cancelled as seen from letter dated 12.4.2012. Hence when no sale deed was executed in favour of plaintiff, it is presumed that the defendants are owners of the schedule mentioned property and as such even though the plaintiff is in possession and enjoyment of the suit schedule property, no injunction

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can be granted against the defendants as they are true owners of the schedule mentioned property.

28.Hence considering the above, the plaintiff is not entitled for the grant of permanent injunction also and as such issue No.3 is answered in favour of plaintiff while issue Nos.4 and 6 are answered against the plaintiff.

29.Issue No.7: To what relief?

Considering the findings to issues No.1 to 6, even though the issue No.3 is answered in favour of the plaintiff, issue Nos. 1, 2, 4 to 6 are answered against the plaintiff and in favour of the defendants and as such the plaintiff is not entitled for relief of declaration that letter

dated 12.4.2012 is illegal, arbitrary, capricious and against the natural

justice or for the grant of permanent injunction and as such the suit is liable to be dismissed.

29.Result: In the result the suit is dismissed without costs.

Dictated to the Steno on Laptop, corrected and pronounced by me

in open court, this 2nd day of May, 2017.

Sd/- V.Lakshmi Rajaym,

Principal Junior Civil Judge,

Bobbili.

Appendix of evidence

Witnesses examined

For Plaintiff: PW-1: Pawan Kansaria

For Defendants: DW-1: M.V.Karunakar

Documents marked

For Plaintiff: Ex.A-1: Original Possession certificate dated 26.6.2007 issued by D-1 to PW-1.

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Ex.A-2: Extract of registered agreement of sale dt.26.6.2007 executed between PW-1 and D-1.

For Defendants: -Nil-

Sd/- V.Lakshmi Rajaym,

Principal Junior Civil

Judge,

Bobbili.

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