Andhra HC (Pre-Telangana)
Sri. Qudrat Nawaz Khan (Died) And Ors. vs The Special Deputy Collector, Land ... on 18 January, 2008
Equivalent citations: 2008(2)ALD682, 2008(2)ALT774
ORDER V.V.S. Rao, J.
1. The writ petition was originally filed by Qudrat Nawaz Khan, S/o.Col. Omar Daraz Khan of Golconda, Hyderabad. During the pendency of these proceedings, he died and his wife and children are brought on record as legal heirs. A writ of Mandamus is sought for direction to respondent to pass an award under Land Acquisition Act, 1894 (the Act, for brevity) for the land admeasuring Acs.24.12 guntas in survey No. 36 (Old) corresponding to new survey Nos. 207, 208 and 209 situated at Makai Darwaza, Golconda, Hyderabad District (hereinafter called, subject land).
2. The brief fact of the matter is as follows. The subject land was originally owned by Col.Omar Daraz Khan. In 1950, subject land was acquired by Military. The land owner approached the authorities for compensation, in vain. He died in 1955. General Power of Attorney (GPA) of first petitioner, Abdul Khadar, unsuccessfully pursued the matter from 1958 to 1983 with the authorities for compensation. The GPA died on 28.1.1983. It is alleged that first petitioner was away from India and working in Saudi Arabia and after retirement he came back and was pursuing the matter with the authorities.
3. The Defence Estate Officer, Cantonment - fourth respondent herein; filed counter affidavit in July 1996. Another counter affidavit was also filed in February 2006. Their case in brief may be noticed. By proceedings of the Board of Revenue dated 19.8.1958, an extent of Acs.484.02 guntas in Ibrahim Bagh lines near Makai Darwaza was transferred by the State Government to Government of India, Military of Defence. The land was taken over by fourth respondent as Ex-State Forces Land, which is treated as Government of India property under Article 295(1) of Constitution of India with effect from 01.4.1950. From the date of taking possession on 19.3.1958 the land is in possession of the Defence Ministry and there was no interference by anybody. Military Land Register (MLR) maintained by Defence Estate Office also contains entries about this land in accordance with Rule 14 of Military Lands of India (ACR) Rules, 1944. Swimming pool, training/parade area, Old Park, MI room etc., are existing in the land under the occupation of the Defence Ministry. An extent of Acs.24.12 guntas in survey No. 35 (Old) corresponding new survey Nos. 207, 208 and 209 also forms part of Acs.484.02 guntas in survey No. 35 (Old). This land falls in Ibrahim Bagh lines area near Makai Darwaja and is occupied by pakka defence installations. Military never acquired land in survey No. 207 or 209 and never took possession from Late Col.Omar Darwaz Khan. Fourth respondent is not aware of any claim petition filed by father of first petitioner for compensation. The present petition filed by first petitioner is barred by limitation. The correspondence between petitioners and respondent is of no avail, as the latter has no authority to usurp the jurisdiction unless proceedings are initiated under the Act. The subject land claimed by petitioners is in possession of the Defence Ministry for last 38 years and nobody claimed any right or interest in the property.
4. Respondents 1 to 3, Government of Andhra Pradesh, have not filed any counter affidavit. Learned Assistant Government Pleader for Land Acquisition obtained instructions and argued the matter seeking dismissal of case. Reply affidavit is filed by petitioner No. 3 to the counter affidavit of fourth respondent. While asserting that Col.Omar Darwaz Khan is owner of the property, allegation made by first respondent that he was not the owner of the property is denied. A reference is made to Pahani and plan of 1348 and 1353 Faslis. It is further alleged that after inspection, Revenue officials found that name of original owner appears in the revenue records as pattadar. A reference is also made to File No. F2/23388/73 of second respondent in support of the claim.
5. Learned Counsel for petitioners submits that when the land of petitioners was acquired by Military it was incumbent on the part of first respondent to pass an Award giving adequate compensation. When the first petitioner filed a claim petition the land was inspected by fourth respondent and sent a report to the effect that the land formed part of Estate Forces was taken possession by the Collector. According to learned Counsel, this would itself establish possession of petitioners. He placed strong reliance on the opinion of Government Pleader dated 14.6.1982 in support of the contention. He also submits that delay and laches would not bar the claim of petitioners, as the matter was pursued by GPA till his death, and that after coming back to India, first petitioner pursued the matter further.
6. Learned Assistant Government Pleader submits that when the land was allegedly taken possession by the Military in 1958 writ petition is filed in 1995, after lapse of 37 years and therefore the writ petition is barred by delay and laches. She nextly contends that even if the GPA died in 1983 nothing prevented petitioners to approach the Court immediately but they waited 8 years for filing writ petition.
7. Learned Assistant Solicitor General for fourth respondent while submitting that delay and laches on the part of petitioners would bar any writ in their favour, further made the following submissions. Petitioners have not placed any material before this Court that they are persons interested or owners of the subject land. No document showing their title, panchanama under which possession was taken by Military, or document evidencing handing over possession of land by District Collector to Military or any other document in support of title are produced. In the absence of any such document, petitioners would not be entitled to any relief. Reliance is placed on Rule 6 of Writ Proceedings Rules, 1977, and the decision of this Court in Yandrapalli Krishna Rao v. Government of Andhra Pradesh and a decision of Supreme Court in Bharat Singh v. State of Haryana . It is nextly contended by learned Assistant Solicitor General that when there is a disputed question of title, writ petition is not a proper remedy and that Central Government never acquired the land.
8. The background of the case and rival contentions would require consideration of only point as to whether petitioners are entitled for compensation for the subject land allegedly belonging to Late Col.Omar Daraz Khan?
9. It is too trivial and obvious to say that owner of the land or such other person interested in the land has enforceable civil right and is entitled for compensation from State. A third party cannot claim such compensation. Indeed, explaining the principle further, writ petition seeking Mandamus would lie only for enforcing a right and ordinarily a writ petition for declaration of a title would not lie. This is well settled. A reference may be made to State of Rajasthan v. Bhavani Singh wherein it was laid down.
Having heard the counsel for the parties, we are of the opinion that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition.
10. In Mohan Pandey v. Usha Rani Rajgaria , the Apex Court reiterated above principle as below.
...According to the stand of the landlord-respondent, since the police were taking a partisan attitude against her, the filing of a writ petition became necessary. We are unable to follow this argument. There is no doubt that the dispute is between two private persons with respect to an immoveable property. Further, a suit covering either directly a portion of the house-property which is in dispute in the present case or in any event some other parts of the same property is already pending in the civil court. The respondent justifies the step of her moving the High Court with a writ petition on the ground of some complaint made by the appellants and the action by the police taken thereon. We do not agree that on account of this development, the respondent was entitled to maintain a writ petition before the High Court. It has repeatedly been held by this Court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of Constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged.
11. In yet another judgment, apex Court in Dwarka Prasad Agarwal v. B.D. Agarwal , held:
A writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Article 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character. It is also well-settled that a writ remedy is not available for resolution of a property or a title dispute. Indisputably, a large number of private disputes between the parties and in particular the question as to whether any deed of transfer was effected in favour of M/s. Writer and Publishers Pvt. Ltd. As also whether a partition or a family settlement was arrived or not, were pending adjudication before the civil Courts of competent jurisdiction. The reliefs sought for in the writ petition primarily revolved round the order of authentication of the declaration made by one of the respondents in terms of the provisions of the said Act.
12. Petitioners 2 to 5 who claim that late Col.Omar Darwaz Khan was owner of the land have to first prima facie satisfy this Court that he had such title. Whether they have title or not is a contentious issue. Their case that the subject land was taken over by Military Defence in 1958 stands rebutted by fourth respondent. It is asserted by learned Assistant Solicitor General that the land claimed by petitioners was never taken over and that land claimed by them forms part of old survey No. 35. Therefore the dispute for consideration is two fold: First whether the land in survey Nos. 207, 208 and 209 falls within old survey No. 35 or falls in old survey No. 36 is itself a dispute. Secondly whether the subject land claimed by petitioners comprised in survey No. 36 is taken over by Military in 1950 is itself in dispute. In this situation, burden heavily lies on petitioners to satisfy this Court that they had right to file writ petition claiming compensation. They did not do so.
13. In the reply affidavit a reference is made to File No. 23388/73, in which it is alleged that inspection report of second respondent is available saying that it is the land owned by Col.Omar Daraz Khan. Reliance is also placed on a letter dated 23.10.1981 of Military Estate Officer, Secunderabad, wherein it was observed that the Central Government is not liable to pay compensation and that the State Government has to pay compensation. It was also observed therein that the land admeasuring Acs. 1650.32 guntas excluding Acs. 150.08 guntas situated at Chandrayanagutta lines was handed over to Military on 19.3.1958 as part of mutual exchange agreement and therefore Central Government is not liable to pay compensation. Further emphasis was also laid by petitioners on letter dated 14.6.1982 addressed by Government Pleader to first respondent in support of the case that possession was taken from petitioners.
14. In the letter dated 23.10.1981 addressed by Military Estate Officer to first respondent, while mentioning that subject land forms part of Ex-State Forces property admeasuring Acs.484.02 guntas forms part of Acs. 1650.32 guntas of Mahmedi lines, Ibrahim Bagh lines, Makkai Darwaza lines, Banjara lines and Chandrayanagutta lines falling to the share of Government of India, it was mentioned therein thus.
The possession of the above said area viz., Acs. 1650.32 guntas excluding Acs. 150.08 guntas of lands at Chandrayanagutta lines was handed/taken over by us through the Board proceedings dated 19.3.1958 in which a rep of Collector was also one among the members. In exchange of the above said area of lands an area of land measuring Acs.974.48 guntas belonging to the Government of India, Ministry of Defence at Fateh Darwaza Lines (Dhanka Kotah and Neurangi Maidan) and at seven others blocks was fell into the share of State Government vide letters referred to above.
In the light of the above I feel that the lands in question which come into the share of Government of India consequent to the mutual exchange under the authority of Govt. letters referred to above we need not pay any compensation to the petitioner. If he is legitimately entitled to the compensation, it is for the State Govt to pay and settle the claim of the petitioner.
However I feel it is worth to refer the matter to State Govt. at your channel and obtain their clear instructions/advise to proceed further.
(emphasis supplied)
15. The above document does not in any manner lead to an inference that the petitioners have any right in the land. In the letter addressed by Government Pleader to first respondent on 14.6.1982 it was pointed out as below.
It is seen from the record sent that the lands (bearing S. No. 36 measuring As.19.00 or S. Nos. 207, 208, 209 measuring Acs.24.02 gts.,) were taken possession of by the then Military Authorities some time prior to 1350 Fasli (vide Motima Sarfekhas letter dated 12th Farwardi 1350 Fasli) from Col.Omer Daraz Khan (as stated by the claimants themselves). It is to be examined under what provisions of law and what circumstances possession of lands was taken - with reference to the relevant files of Sarfekhas Secretariat and the erstwhile Government of Hyderabad. Whether urgent possession of the lands was taken as a prelude to regular land acquisition proceedings has to be ascertained. The law for acquisition of lands then prevailing was The Hyderabad Land Acquisition Act (No. IX of 1309 Fasli).
The possession of lands was taken sometime in 1941 (1350 F) from Col.Omer Daraz Khan, who died in May 1955. It has to be ascertained with reference to the relevant old records.
a) Sarfekhas Secretariat file in which the letter No. 1397 dated 12.5.1350F was issued,
b) Records of the Ex Hyderabad State Military,
c) Collector, Hyderabad (Ataf Balda) - Land Acquisition Branch, Whether Col.Omerdaraz Khan preferred any claim, whether any proceedings for land acquisition were initiated by the then Government, and if so with what result (including the claims of Col.Omardaraz Khan). The heirs of late Col.Omerdaraz Khan allege to have filed claim petitions before the Land Acquisition Officer, Military Area, Hyderabad (file No. C/10/4032/58 MLY I Branch) and before the Collector, Land Acquisition, Hyderabad, in 1962 and 1966 (file No. D3/6630/62) and to have submitted certain documents in response to the Memo. No. D3/5530/1962. The relevant records where the petitions alleged to have been filed were dealt with have to be examined to ascertain how the said petitions were disposed of.
(emphasis supplied)
16. While saying so, learned Government Pleader also opined that as possession was taken more than 40 years ago (by then) and as Col.Omar Daraz Khan died in 1955 the circumstances under which possession has taken have to be verified and desirability of Military Estate Officer sending a proposal for acquisition has to be considered.
17. After perusing the two documents carefully, this Court is not able to countenance the submission of learned Counsel for petitioners. These two letters would not lead to an inference that possession was taken from late Col.Omar Daraz Khan and that he was the owner of the land. This Court however hastens to add that it is being a question of title, it cannot be gone into in a writ petition especially when this Court is called upon to decide the right of petitioners to claim compensation for the land, which was taken over by Military in 1941 or 1950 as the case may be. Further more when a person comes before the Court for redressal of his grievance having regard to the nature of proceedings, he is bound to place all the documents before this Court to enable the Court to draw appropriate inference before exercising discretion. Petitioners have not placed any material before this Court to show that they have title much less absolute title to the property claimed. Rule 6 of Writ Proceedings Rules, 1977, throws strict obligation on petitioners to file necessary documents in support of petition averments.
In Bharat Singh (supra), Supreme Court laid down as below.
In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
(emphasis supplied)
18. Learned Assistant Solicitor General and learned Assistant Government Pleader for Land Acquisition strenuously contend that when the land allegedly belonging to Col.Omar Daraz Khan was taken over by Military in 1941/1950 they approached the court in 1995 by filing the present writ petition and therefore writ petition would not lie. They also pointed out that if a person on volition makes a number of applications seeking redressal from public authorities and on that ground fails to approach the Court within a reasonable time, effort to seek administrative redressal before public authorities would not save the limitation. This Court finds force in the submission especially when petitioners have not able to satisfy this Court that they had genuine reasons for approaching this Court belatedly. Explanation is offered that as long as GPA holder of original petitioner is alive, he pursued the matter till 1983 and after his death petitioners are pursuing the remedy. Even if it is true petitioners could not have approached this Court immediately after death of GPA of first petitioner in 1983. They waited for another 12 years before filing writ petition and therefore the submission of respondents has to be accepted. While observing that a period of six months is proper period of limitation for seeking redressal under Article 226 of Constitution of India, in a decision of the Constitution Bench of Seven Judges of the Supreme Court in S.S. Rathore v. State of M.P. , held:
... in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made, submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.
19. In State of Maharashtra v. Digambar , the Supreme Court considered the question of delay. When persons belatedly approach the Courts under Article 226 of the Constitution seeking compensation for their land which was acquired for public purpose, it was held.
In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non-compliance with petitioners demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the Governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it.
(emphasis supplied)
20. In C. Padma v. Deputy Secretary to the Government of Tamil Nadu (1997) 2 SCC 627, the Supreme Court held.
...It is seen that after the notification in GOR 1392 dated 17-10-1962 was published, the acquisition proceeding had become final, the compensation was paid to the appellants' father and thereafter the lands stood vested in the State. In terms of the agreement as contemplated in Chapter VII of the Act, the Company had delivered possession subject to the terms and conditions thereunder. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd., 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood finally settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose.
(emphasis supplied)
21. In Municipal Council, Ahmednagar v. Shah Hyder Baig , the Supreme Court considered the effect of delay in exercise of jurisdiction under Article 226 and held.
...It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise.
(emphasis supplied)
22. As already observed, petitioners have not properly explained huge delay of about 40 years in claiming compensation and if at this point of time, after lapse of about 60 years, a Mandamus is issued it would be travesty of justice. Writ of mandamus should be issued to further a cause and subserve justice and not to subvert it.
23. The writ petition is devoid of any merit and is accordingly dismissed. However, in the facts and circumstances of the case, this Court declines to make any order as to costs.