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2002 DIGILAW 1047 (AP)

Government Of A. P. v. Sree Pancha Murthy Co-operative House Building Society Limited, Hyderabad

2002-08-28

DUBAGUNTA SUBRAHMANYAM, S.R.NAYAK

body2002
S. R. NAYAK, J. ( 1 ) ALL these writ appeals arise out of the common order of a learned single Judge dated 27-3-2000 made in Writ Petition Nos. 11200, 21431, 23217 and 19297 of 1998. Hence they are heard together and are being disposed of by this common judgment. ( 2 ) IN Writ Petition No. 11200 of 1998, out of which Writ Appeal No. 502 of 2000 arises, the petitioner-Sree-Pancha Murthy co-operative House Building Society limited, Hyderabad, represented by its President, prayed for the following relief:"for the reasons stated in the accompanying affidavit, it is prayed that this Hon ble court may be pleased to issue a Writ of mandamus declaring that the action, whatsoever declaring the said extent of ac. 5-00 of land held by the petitioner herein in Sy. No. 129/105 and now treated as part of T. S. No. 1/1/1, Block-H, Ward No. 10 of shaikpet village, Golconda Mandal, hyderabad District, as having been handed-over to 5th respondent treating it as Government land, is absolutely illegal, without jurisdiction and non est and not binding on the petitioner, and consequently not to either disturb the petitioner s now treated as part of T. S. No. 1/1/1, Block-H, ward-10, of Shaikpet village, Golconda mandal, Hyderabad District". 2-A. In Writ Petition No. 21431 of 1998, out of which Writ Appeal No. 500 of 2000 arises, the petitioner-Society prayed for the following relief:"for the reasons stated in the affidavit accompanying this Hon ble Court may be pleased to issue a Writ, Order or Direction, more particularly one in the nature of "writ of Mandamus" declaring that the action, proceeding, order or any communication whatsoever declaring the said extent of ac. 2. 33 guntas of land held by the petitioner-herein in S. No. 129/100 and now treated as part of T. S. No. 24/1/1, Block-H, Ward No. 9 of Shaikpet Village, Golconda Mandal, hyderabad District as having been handed over to the 5 respondent treating it as government land, is absolutely illegal, without jurisdiction and non est and not binding on the petitioner and consequently not to disturb the petitioner s possession and enjoyment of the said extent of Ac. 2. 33 guntas of land in S. No. 129/100 now treated as part of T. S. No. 24/1/1, Block-H, Ward no. 9 of Shaikpet Village, Golconda Mandal, hyderabad District". 2. 33 guntas of land in S. No. 129/100 now treated as part of T. S. No. 24/1/1, Block-H, Ward no. 9 of Shaikpet Village, Golconda Mandal, hyderabad District". 2-B. In Writ Petition No. 23217 of 1998, out of which Writ Appeal No. 501 of 2000 arises, the petitioner prayed for the following relief:"for the reasons stated in the affidavit accompanying, this Hon ble Court may be pleased to issue a Writ, Order or direction more particularly one in the nature of "writ of mandamus" declaring that the action, proceeding, order or any communication whatsoever declaring the extent of 10-00 acres of land held by the petitioner herein in S. No. 129/35/1 and not treated as part of T. S. No. 1/1/1 part, block-H, Ward No. 10 of Shaikpet Village, golconda Mandal, Hyderabad District as having been handed-over to 4th respondent treating it as "government land" is absolutely illegal, without jurisdiction and non est and not binding on the petitioner and consequently not to either disturb the. petitioner s possession and enjoyment of the said extent of Ac, 10-00 of land in S. No. 129/ 35/1 now treated as part of T. S. No. 1/1/1 part, Block-H, Ward No. 10 of Shaikpet village, Golconda Mandal, Hyderabad district". 2-C In Writ Petition No. 19297 of 1998, out of which Writ Appeal No. 499 of 2002 arises, the petitioner prayed for the following relief:"it is, therefore, just and necessary that this hon ble Court may be pleased to issue. a writ, Order or Direction, more particularly one in the nature of writ of "mandamus" directing the 1st respondent herein to consider the petitioner s application for grant of layout dated 15-4-1998 and sanction the same in accordance with the prescribed procedure and relevant law in respect of the petitioner s land of an extent of 5 acres in Sy. No. 129/105 of erstwhile Shaikpet revenue Village, now at Road No. 10, banjara Hills" Hyderabad, (which is now identified by the respondents themselves as T. S. No. 1/1/1 Part, Block-H, Ward No. 10 of Shaikpet Revenue village and corresponding to new Survey Number 403), by not insisting upon the production of "no Objection certificate" from the Collector, Hyderabad, "urban Land Ceiling Certificate" and the registration Sale Deed". ( 3 ) THE case of the writ petitioner- society, to summarise briefly, is the following: It is the absolute owner and possessor of Ac. ( 3 ) THE case of the writ petitioner- society, to summarise briefly, is the following: It is the absolute owner and possessor of Ac. 5-00 of land comprised in Survey No. 129/105 of the erstwhile shaikpet Village, Golconda Mandal and now situate at Road No. 10, Banjara Hills, hyderabad, which land will hereinafter be referred to as the schedule land . The schedule land was originally allotted to and purchased by one Sri Mir Hassan Ali Khan from the Sarfekhas authorities of the erstwhile Nizam of Hyderabad sometime in the year 1340 Fasli, that is to say, during the year 1930-1931. The said Sri Mir Hassan ah Khan sold the schedule land in favour of one Mechineni Seetharama Rao by a document dated 20th Azur, 1366 Fash (equivalent to 27th September, 1947) for a sum of Rs. 5,000/- at the rate of Rs. 1,000/- per acre and the said Mechineni Seetharama rao sold the schedule land, in turn, to the petitioner-society by document dated 12. 2. 1974 at the rate of Rs. 6,500/- per acre, and that said document was executed in favour of Manthena Adisesha Raju and five others representing the petitioner-society and since then the petitioner-society has been in actual possession and enjoyment of the schedule property. ( 4 ) IN support of the case of the petitioner, it has placed reliance on the following documents: (1) Letter No. 944 dated 22nd Bahman 1340 fasli in File No. 149/13 of Laoni 40 "the awal Talukdar" (Collector) District Atraf balda (now Hyderabad District) of Sarfekhas mubarak communicated to the Tahsildar, west and South; (2) Letter No. 18 dated 29th Isfandar 1340 fasli in File No. l8/13/40/fasli, the Mudadgar mohtimim Bandobast (Assistant Superintendent, settlement) District Atraf Balda, wrote to the Tahsildar , West and South; (3) A Tippen giving the location and boundary of the said sub-division of an extent of 5 acres of land comprising of sy. No. 129/105; (4) Wasool Baqi of the year 1349 Fasli showing the said extent of 5 acres of land comprising of Sy. No. 129/105. ( 5 ) THE petitioner claims that, when the matters stood thus, without notice to it or its vendors, the schedule land was handed-over in favour of Andhra Pradesh state Non-Resident Indians Re-Investment corporation Limited (for short the "anrich"), one of the respondents in the writ petitions. The petitioner so alleging filed Writ Petitions Nos. No. 129/105. ( 5 ) THE petitioner claims that, when the matters stood thus, without notice to it or its vendors, the schedule land was handed-over in favour of Andhra Pradesh state Non-Resident Indians Re-Investment corporation Limited (for short the "anrich"), one of the respondents in the writ petitions. The petitioner so alleging filed Writ Petitions Nos. 1120, 21431, 23217 of 1998. The petitioner also filed Writ petition No. 19297 of 1998 complaining that the application dated 15-4-1998 made by it for lay-out is not sanctioned by the State government insisting upon the production of no Objection Certificate from the district Collector, Hyderabad, and urban land Ceiling Clearance Certificate and registered sale deed . ( 6 ) THE writ petitions are opposed by the State Government and its authorities by filing a detailed counter-affidavit. In the counter-affidavit, the very basis of the right claimed by the petitioner-society that the schedule land was originally allotted to and purchased by Sri Mir Hassan AH Khan from the Sarfekhas of the erstwhile Nizam of Hyderabad in the year 1930-31 by document dated 12-2-1974 was denied, and it was contended that the said document is a fabricated document. In the counter, the possession of the petitioner-society was also denied. ( 7 ) THUS, from the pleadings of the parties, it could be seen that the title to the property is in serious dispute between the parties. It is nobody s case that till date any competent Civil Court or adjudicator/ authority or Tribunal constituted under any statute has adjudicated upon the title dispute between the parties and recorded its finding. In that view of the matter, we are of the considered opinion that the learned single Judge is not justified in deciding the title questions and the possessory rights of the parties, particularly in a writ proceeding under Article 226 of the Constitution of India. In essence, what is sought in writ petitions is nothing but a declaratory decree for title and injunction. The title and possessory claims of the parties with regard to the landed property cannot effectively be adjudicated in a summary proceeding under Article 226 of the constitution of India. In essence, what is sought in writ petitions is nothing but a declaratory decree for title and injunction. The title and possessory claims of the parties with regard to the landed property cannot effectively be adjudicated in a summary proceeding under Article 226 of the constitution of India. If the petitioner-society, as it claims, is the absolute owner and possessor of the schedule property and if there is any interference with any of its rights flowing from ownership either by private parties or State authorities, it is trite the petitioner-society is at liberty to invoke jurisdiction of the competent civil court for private law remedies of declaration, injunction and damages to suit its grievance. It is well settled that private law remedies like declaration, injunction and damages are available against public authorities also if they interfere with a person s property without authority of law or without recourse to law. A similar view is already taken by this Court speaking through one of us (S. R. Nayak, J) in S. Hemachalam v. District collector, Chittoor and others, 1998 (6) ald 111 . Since it is contended in the affidavits that the action of the State government and its authorities in assigning the petition schedule land to the ANRICH violates the legal rights of the petitioner- society, it is open for the petitioner-society to seek declaratory as well as injunctive reliefs before the jurisdicuonal civil Court. It is well-settled by a catena of decisions of the Supreme Court and this Court that merits of a claim to property or disputed questions of title shall not be entertained in a writ proceeding particularly where the court finds that the parties have effective alternative remedies before other forums or Courts. ( 8 ) IN that view of the matter, the learned single Judge, with respect we say, ought to have dismissed Writ Petitions bearing Nos. 1 120, 21431 and 23217 of 1998 and directed the petitioner-society to avail private law remedies against the State and its authorities before the jurisdictional civil Court. ( 9 ) THE learned single Judge has disposed of Writ Petition No. 19297 of 1998 with a direction to the respondents therein to consider the case of the petitioner for grant of sanction of layout without insisting on production of Urban Land ceiling Clearance Certificate and No objection Certificate , as if the insistence thereof has no legal backing. ( 9 ) THE learned single Judge has disposed of Writ Petition No. 19297 of 1998 with a direction to the respondents therein to consider the case of the petitioner for grant of sanction of layout without insisting on production of Urban Land ceiling Clearance Certificate and No objection Certificate , as if the insistence thereof has no legal backing. Unfortunately, it seems to us that the amendment made to clause (d) of Section 388 of the Hyderabad municipal Corporation Act, 1955 (by Act no. 7 of 1992) with effect from 6-1-1995 was not brought to the notice of the learned single Judge. Under the amended provision, it is obligatory on the part of the applicant to furnish a copy of the title deed and Urban Land Ceiling Clearance certificate in case the extent of land exceeds the ceiling limit and if it does not exceed the ceiling limit an affidavit declaring the total extent of land held by such holder, his or her spouse and unmarried minor children that it does not exceed the ceiling limit, to the authorities to seek sanction of lay-out. ( 10 ) WHEN a Statute requires an applicant to perform an obligation, as a condition precedent, to seek a favourable order at the hands of the statutory authorities, the Court cannot dispense with that requirement and if the Courts were to do so, it would tantamount to violating the mandatory statutory requirement. It is also well-settled that under no circumstance, mandamus shall go to a statutory authority to do something in contravention of public law requirement or in violation of the statute. ( 11 ) IN the result, we allow all the writ appeals and set aside the order of the learned single Judge and dismiss Writ petition Nos. 11200, 21431, 23217 and 19297 of 1998, however, reserving liberty to the writ petitioner-society to avail private law remedies by way of declaration, injunction and damages before the competent jurisdictional civil Court, if it is so advised. There shall be no order as to costs.