IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) MONDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.27578 of 2012 BETWEEN CTE Employees Cooperative House Building Society Limited.
... PETITIONER AND The District Collector, Hyderabad District and others.
...RESPONDENTS Counsel for the Petitioner: MR. P.R. PRASAD Counsel for the Respondents: GP FOR REVENUE (TG) GP FOR SOCIAL WELFARE (TG) The Court made the following:
ORDER:
I have heard the writ petition at length but I am unable to accede to the prayer made in the writ petition primarily for the reason that the prayer amounts to seeking recovery of possession from the Government and such prayer can only be made by approaching a competent civil Court.
2. Learned counsel for the petitioner – society has sought alternate prayer, during the hearing, for quashing the impugned allotment proceedings of the Collector and District Magistrate in proceedings No.E5/6546/2012 dated 19.07.2012 whereby item No.2 of the said proceedings is allotted to District Tribal Welfare Officer.
Learned counsel submits that the petitioner – society claims that they have purchased the land admeasuring 10,575 sq. yards forming part of Sy.Nos.67 and 69 situated at Bholakpur village, Secunderabad from the legal heirs of one Dr. T. Bhaskar Rao under 12 different registered sale deeds of the year 1992. Learned counsel for the petitioner – society further submits that the said Dr. T. Bhaskar Rao was the admitted absolute owner of the aforesaid land. Learned counsel further submits that the petitioner – society obtained approved layout from the Secunderabad Cantonment Board in the year 1995 and when the petitioner society was about to start construction work for its members, the first respondent came to the property and stated to have mentioned about the impugned proceedings whereupon the petitioner - society obtained the said proceedings and challenged the same in the present writ petition.
3. According to the petitioner – society, the said entire land, being a private land, the action of the first respondent in allotting the same to respondents 2 and 3 is wholly without jurisdiction and illegal.
4. On 04.09.2012, this Court, while admitting the writ petition, granted interim direction as prayed for in respect of the land as regards which the Cantonment Board has approved layout in favour of the petitioner – society.
5. It is stated that in spite of the aforesaid interim direction, when respondents 2 and 3 interfered with the construction activity, the petitioner – society filed a contempt case and during the hearing of the contempt case, various contentions of the respondents, on merits, came to light including that the layout obtained by the petitioner – society also covered part of Government land, which is recorded as Abadi in the Government record.
6. While so, in the present writ petition, the respondents have filed a detailed counter through the Collector, Hyderabad and it is stated in paras 4 and 5 as follows:
“IV. It is submitted that since the very identity of property is disputed by the Petitioners, the matter was referred to Deputy Director, Survey & Land Records Hyderabad to conduct detail survey and to submit report. DD, SLR submitted a report stating that the petitioner society by including the adjacent Government (Abadi) land obtained layout. As a result the layout of society is covering not only private land but also Government land.
V. It is submitted that the Revenue Divisional Officer, Secunderabad Division was also requested to conduct enquiry and submit a report. The Revenue Divisional Officer, Secunderabad Division conducted a detailed enquiry and submitted a report stating that:
“The entire land to an extent of Ac.2.07 ½ guntas for which society got layout is covered by structures. Out of 2 acres 7 ½ guntas an extent of 2894 sq mtrs (about 29 gts) falls in Sy.No.67 of Bholakpur (vg) and the remaining 1 acre 17 gts (about 5746 Sq mtrs) falls in Abadi land (Government land)”.
It is further mentioned in para V as under:
“It is relevant to submit that the petitioner’s society filed a civil suit in O.S.no.311/1993 before XI Assistant Judge, City Civil Court, Secunderabad against the occupants (hut dwellers) of the land purchase by them which was disposed in favour of petitioner society. Against this, the hut dwellers preferred an appear suit in AS.No.187/97 before 1st Addl. Chief Judge, City Civil Court, Secunderabad. Said appeal suit was disposed of on 13-12-2004 setting aside the lower court order and it was held against the petitioner society. The findings of the Hon’ble Court in Appellate Suit are as follows:
“As already observed above, as the respondent No.1 society failed to establish their title and possession over the suit schedule property for the extent of land claimed by them, they are not entitled for the equitable relief of injunction as granted by the lower court.”
Relevant para VI of the counter affidavit is as follows:
“VI. It is submitted that the Deputy Director, Survey & Land Records Hyderabad in his report stated that the society got their layout approved well extending on to the adjacent Government Abadi land. When the above facts are brought to the notice of this respondent, the Tahsildar was directed to issue show cause notices to the occupants of Government Abadi land which is covered by society layout. The Tahsildar has issued show cause notices and obtained the replies which reveal that the occupants are not tracing their rights through the society and they are third parties and some of them have got their illegal occupation regularized under G.O.Ms.No.166 dated 16.02.2008.”
7. During the earlier hearing of the matter, it was pointed out that a survey conducted by the Deputy Director is essential to be perused for the purpose of adjudication of this writ petition. Hence, learned Assistant Government Pleader was directed to produce the survey report. Learned Assistant Government Pleader has now produced a survey sketch plan. However, the report is not available in the Government record.
8. Learned counsel for the petitioner – society has also been furnished a copy of the said sketch and based on the said sketch, it is contended that the land shown as Abadi is part of the land claimed by the petitioner – society and even after excluding the same, the allotted portion of the land still falls within the area, which is claimed by the petitioner – society. Reliance is also placed upon the village map to substantiate that the land in Sy.Nos.67 and 69, out of which the petitioner – society has made plots, has always been recorded as private land in the Government record. Documents such as Pahani and Vasool Baki are also relied upon, which are appended to the writ petition, to substantiate the said claim.
9. It is evident from the record that while the claim of the petitioner – society may be with respect to Sy.Nos.67 and 69, as per the registered sale deed, the fact remains that the adjacent land is a Government land, which is shown in the record as Abadi, which the petitioner – society also accept. It is, however, the case of the petitioner – society that part of its land is treated as Government land and allotted to respondents 2 and 3. Assuming that to be so, the remedy under Article 226 of the Constitution of India is hardly an adequate remedy for adjudication of such disputed questions of fact. Even assuming the land of the petitioner – society is wrongly treated as Government land and allotted to respondents 2 and 3, the said aspect cannot be adjudicated under Article 226 of the Constitution of India nor any relief can be granted to the petitioner – society in the present writ petition, as the same would necessarily involve determination of disputed questions of fact as to demarcation of land of the Government vis-à-vis private land adjacent thereto and the entitlement of the respective parties thereto. As stated above, even assuming that the Government had allotted part of the private land to respondents 2 and 3, unless there is adjudication by a competent civil Court on the said aspect, no relief can be granted under extraordinary jurisdiction of this Court.
10. Thus, keeping in view the relief claimed as well as alternate relief sought for by the petitioner – society, I regret my inability to accept the contentions of the learned counsel for the petitioner – society for the reasons stated above.
The writ petition is accordingly dismissed with a liberty to the petitioner – society to take appropriate proceedings, in accordance with law, if law permits. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J July 7, 2014 DSK