Andhra HC (Pre-Telangana)
Shahebzadi Mallika Jehan Begum And Anr. vs Municipal Corporation Of Hyd. And Ors. on 5 August, 1998
Equivalent citations: 1998(5)ALD79
JUDGMENT
1. This writ petition is filed seeking writ of mandamus declaring the action of the respondents in trying to interfere with the possession of the petitioners over the land bearing Municipal No.5-9-29/3/10, situated in Sy.No.207 (Old) of Basheerbagh admeasuring 2,300 sq. yards, as illegal and arbitrary and violative of Articles 14 and 300-A of the Constitution of India and for consequential direction.
2. It is the case of the petitioners that they are absolute owners of the land to an extent of 2,300 sq. yards situated at Municipal No. 5-9-29/3/10, Basheerbagh, Hyderabad. The said property was part and parcel of Basheerbagh Palace and appertunent land totally admeasuring Ac.21-09 gts. originally belonged to Nawab Moin-ud-doula Bahadur, Amir-e-Paigah. Subsequently, Mr. Zaheer-Yar Jung Bahadur became custodian of the said property in pursuance of the judgment and decree in CS No.7/1958 on the life of this Court. During the life time of Moin-ud-doula Bahadur, the father of the petitioners was allotted an extent of 4,083 sq. yards in S.No.207 (Old) in the year 1355 Fasli, presently premises No.5-9-29/3/10 at Basheerbagh. The said land fell to the eastern side of Basheerbagh Palace and it finds a mention in the Receiver-cum-Commissioner's letter dated 9-3-1966. Permission was obtained to construct certain mulgies and thus the petitioners have been in continuous and uninterrupted possession of the said land as the owners. They have been paying the property tax. While so, it is the case of the petitioners, that certain persons belong to Municipal Corporation tried to interfere and on enquiry it was revealed that the Municipal authorities wanted to lay a road. Since the petitioners are the owners, they made protest that the land possessed by them cannot be interfered with except in accordance with law and, therefore, they made written objections that in the absence of recourse to land acquisition proceedings no such interference can be allowed. Finally, a representation was made on 29-11-1997 and since the attempt of respondents continued unabated and the action of the respondents has the effect of deriving the petitioners of their right to enjoy property apart from being arbitrary, the writ petition is filed seeking directions to the respondents not to interfere with the land admeasuring 2,300 sq.yards situated at Basheerbagh.
3. While admitting the writ petition, interim directions were granted. The counter affidavit was filed on behalf of the Municipal Corporation taking a preliminary objection that the proceedings under Article 226 are not maintainable and it is purely a civil dispute and hence the writ petition has to be dismissed. It is also their case that the property numbered as Municipal No.5-9-29/3/10 is a non-existing and fictitious property and that there was no survey number as 207(01d, Basheerbagh. One of the petitioners also filed suit OS No.512 of 1997 against G.R. Gorakhnath and others in respect of the said property which is pending on the file of VII Addl. Judge, City Civil Court, Hyderabad. The petitioners tried to introduce this municipal number in the assessment books in collusion with Department Officials and in fact there is no premises recorded in the assessment register. It was denied that the property was forming part of the property in CSNo.7 of 1958 on the file of this Court. In fact in Gaganmahal village there were only 198 survey numbers and hence the S.No.207 is a fictitious number. The municipality never accorded permission for construction of mulgies. In feet one G. Rajeshwar Rao and others filed OS No.845 of 1981 on the file of V Addl. Judge, City Civil Court, Hyderabad, claiming property bearing Municipal No.5-9-29/ -3/10 with S.No.207 of Gagan Mahal Road, admeasuring 834.6 sq.yards. The said suit was dismissed and the appeal filed by the plaintiff was also dismissed. Further, one Mehboob Baig also filed OS No.998 of 1991 making a similar claim against the municipality and the same was also dismissed. It is the case of 1st respondent-Municipal Corporation that the petitioners set up Rajeshwar Rao and others to file suits - OS Nos.845/81 and 998/ 81 and they were dismissed on 29-12-1997 and it is only after the dismissal of these suits the present writ petition has been filed. It is stated that the Government have allotted 6 acres 19 guntas to the Municipality in G.O.Ms. No. 152 (Revenue Department), dated 11-2-1965 and the delivery was taken in 1965 itself and buildings were also constructed thereon. The Corporation is taking steps to extend the road over the land so as to facilitate easy flow of traffic and also for construction of fly over at Telugu Talli. By virtue of the interim directions, the entire construction activity has come to stand still. Therefore, it is submitted that there are no merits in the writ petition and the same be dismissed.
4. Counter affidavit was also filed by the 5th respondent, Secretary to Government in Revenue Department. The very same objection as to the maintainability of the writ petition is taken in this counter. It is stated in the counter that the land in question was in no way connected with the land claimed by the petitioners since there was no S.No.207 in Basheerbagh and the last survey number is 198, and therefore, S.No.207 is nothing but a ghost and imaginary survey number. It is further stated in para 4 as follows :
"(i) It is submitted that the land in TS No.2/1, 2/2, 2/3 of Block A, Ward No.53 admeasuring an extent of 39,476.00 sq. metres belonging to the Government, out of which an extent of Ac.6-19 guntas of land was handed over to the 1st respondent under G.O. Ms. No. 152, dated 11-2-1965 and the physical possession of the same was handed over to the 1st respondent i.e., MCH duly conducting a "Panchanama" on 29-4-1965. It is also submitted that town survey was conducted under the provisions of A.P. Survey & Boundaries Act, 1923, from 1964 to 1971 and notices were issued under Section 9(2) of the said Act, to the registered holders of the land i.e., the 1st respondent since the land in question has been in possession of the 1st respondent since 29-4-1965 i.e., the date of handing over possession by this respondent. Final notification under Section 13 of the said Act was published in A.P. Gazette No.27, dated 22-4-1976 and the entries in the Town Survey land records have become final and conclusive proof unless it is modified by a decree in a suit filed by the competent civil Court within 3 years from the date of final notification under Section 13 of the Act. The writ petitioners have not filed any civil suit. The writ petitioners have neither title nor possession over the land in question and allegedly claiming of the title over the property in question. The petitioners are claiming the lands to be under S.No.207 whereas no such survey number is in existence, therefore the identity of the property itself is in dispute. Disputed question of title and possession cannot be gone into in proceedings like the present writ petition under Article 226 of the Constitution of India by this Hon'ble Court.
(ii) It is also submitted that the petitioners are claiming the lands in question as alleged S.No.207 without mentioning any village. The Survey No.207 is a fictitious and imaginary one, since the last survey number in the said locality is only 198. Payment of non-agricultural taxes and house tax, does not confer any right or title on the writ petitioners. The Government is the absolute owner of the land in question before its allotment to the 1st respondent under G.O. Ms. No. 152, dated 11-2-1965. The petitioners filed the present writ petition with all incorrect and untenable pleas solely with an intention to knock away the valuable Government land. The present writ petition is nothing but an attempt to grab the valuable public property and the writ petition is liable to be dismissed "in limine' on the ground also.
(iii) It is also submitted that the 1st respondent has been in exclusive possession of the property and it is classified as GVM in Town Survey Land Records, since it is vested in MCH. The road leading from Tclugu Talli to Tank Bund is one of the busiest and main arterial roads of the twin cities as it connects Hyderabad and Secunderabad cities. As the fly over work has already been coming up to Ambedkar junction, the heavy vehicular movement will be severely impeded because of the construction work. Therefore, with a view to alleviate the problems of commutors Government has proposed and the work has been started for a slip road around the traffic police station at Tank Bund for vehicle movements towards Secunderabad side."
It is further stated that the survey was undertaken in pursuance of the provisions of A.P. Survey and Boundaries Act, 1923 and finally notification was published in A.P. Gazette on 22-4-1976. Since the petitioners did not make any representation, the notification became final and now it is not open for the petitioners to contend that the land is owned and possessed by them.
5. Separate counter affidavit was filed on behalf of the Secretary, Municipal Administration Department. It is stated that a fly over has been sanctioned at Telugu Talli at a cost of over Rs. 15.00 crores and in that connection the Government is taking steps to lay a road. It is also stated that land in Town Survey Nos.2/1,2/2 and 2/3 of Block A, Ward No.53 was having an extent of 39,476.00 sq.metres belonging to Government, out of which an extent of Ac.6-19 gts. was handed over to Municipality vide G.O. Ms. No.152 ; dated 11-2-1965 on 29-4-1965. The payment of non-agricultural tax does not confer any right or title on the petitioners. The 1st respondent has been in exclusive possession of the property and it was classified as GVM in the Town Survey Land Records. In order to alleviate traffic congestion, the Government proposed a slip road diverting the vehicles moving from Secunderabad, Himayatnagar and Basheerbagh towards Secretariat from Liberty Junction through MCH compound passing through Burgula Rama Krishna Rao office complex. If the traffic is not diverted, any amount of traffic inconvenience will be caused and the fly over cannot be constructed within the scheduled time. The house number was fraudulently mentioned as 5-9-29/3/10 and after enquiry it was cancelled. With regard to Memo dated 2-6-1995 issued by Special Deputy Collector (Land Acquisition) MCH, it was stated that the same was obtained in collusion with the officials and necessary action has been initiated against the erring Government officials. There is no question of acquiring the property as the property belongs to Government. The petition schedule land is covered in Ward No.53 Block A and in TS Nos.2/1, 2/2 and 2/3 of Gagan Mahal village and the same was allotted to 1st respondent under G.O.Ms.No.152, dated 11-2-1965 and physical possession of the same was handed over on 29-4-1965.
6. The reply affidavits were also filed by the petitioners. Thereafter, additional counter affidavit was filed on behalf of the respondents by the District Collector, Hyderabad District, in his capacity as District Collector and Collector, Survey and Land Records, Hyderabad. It was tried to be clarified about the mention of S.No.28 of Khairatabad in G.O. Ms. No.152, as one of the objections which was raised by the learned Counsel for the petitioners was that the land which was allotted to Municipal Corporation was mentioned as if it was situate at S.No.28 of Khairatabad village and question of the land now lying in Gagan Mahal village would not arise and therefore there are inconsistencies in the stand taken by the respondents. To this, it is stated that the town survey was conducted from 1964 to 1971 and final notification was issued under Section 13 of the Act and it was published in Gazette on 22-4-1976 and the same became final, as there was no objection with regard to the final notification in respect of the land in question within a period of three years. It is now stated that TS No.2/1 is recorded as Municipal Land and shown as vacant site and nala. The extent is recorded as 33,968 sq.metres. TS No.2/2 is also recorded as Municipal land and described as vacant site with an extent of 106 sq.mts. and TS No.3 is also recorded as Municipal land and described as vacant land and nala and the extent is 5,402 sq.mts.. It is stated that the mention of TS 2/3 in the earlier counter affidavits filed by respondents 4 and 5 is only a typographical error instead of typing it as TS No.3 it was incorrectly typed as TS No.2/ 3. Therefore, the total extent of all these three TS numbers is 39,476 sq.mts. out of which an extent of 6 acres 19 guntas was handed over to MCH in 1965 i.e., 26,198 sq.mts. and the balance of 13,278 sq.mts. vacant land still belongs to Government and the Government is the absolute owner of the property. Further TS No.4, is recorded as Government Abadi of an extent of 624 sq.mts. which is also shown as vacant land. The alleged Town Survey Registers filed by the writ petitioners were verified and they were found to be fabricated to suit the convenience of the petitioners. TS No.3 was recorded in the original register as nala while it was shown as 'Daba' in the record submitted by the petitioners. The entries in the remarks column also did not tally with the original records of survey register. Thus, it was submitted that the documents are fabricated. Even the extent of survey register was not tallying and they were also obtained by playing fraud, ft is further stated that the land in question was village site (Abadi) in Gagan Mahal village and, therefore, in column No.3 of Town Survey Record Register it is shown as nil. With regard to mention of S.No.28 of Khairatabad village, mentioned in G.O. Ms. No. 152, dated 11-2-1965, it is stated as follows :
"The land in question was originally in Gagan Mahal village, but during the Revision Survey conducted in 1348-F it was included in Khairatabad village as S.No.28. However, the said survey was not announced nor implemented. Therefore, the said land continued to be in Gagan Mahal village. As submitted earlier, the town survey was conducted during the years 1964 and 1971 while conducting the town survey, initial survey records were followed and the revision survey was not taken into consideration as it was not accounted. Therefore, in the Town Service Land Register, TS Nos.2/I, 2/2, 3 etc. are corelated to Nil survey number as the lands in question are formed part of Gagan Mahal village site (Abadi). In feet, this issue regarding S.No.28 of Khairatabad village in respect of the very same property was the subject-matter of a First Appeal in CCCA No.48/63 and CCCA No.67/64 and a Division Bench of this Hon'ble Court in the judgment dated 13-2-1970 was pleased to consider the same elaborately in the said judgment and held that the land situated in Gaganmahal village is 'Abadi' or village site to which the Government is entitled to. In the said judgment the Division Bench of this Hon'ble Court was pleased to reject the contention of the plaintiff-appellant therein that the land in question forms part of the land belonging to the owners of Basheerbagh palace. It was further held in the said judgment that the land in question is 'Abadi' i.e., village site and it is for that reason it does not bear any survey number according to the Government. It is further Submitted that due to inadvertance while issuing G.O. 152, dated 11-2-1965 the Revision Survey No.28 of Khairatabad was erroneously mentioned. A mention of an unannounced revision survey number in the said G.O. will not in any way affect the rights of the parties as observed by the Hon'ble Division Bench in CCCANo.48/63, dated 13-2-1970."
7. Thus, it is stated that after handing over the possession of Ac. 6-19 gts., the balance extent of about 13,278 sq.mts. is the Government land lying towards the eastern side of MCH block and Government is the absolute owner of the said property and that the petitioners have no right to claim the property. Thus, it is prayed for dismissal of the writ petition.
8. The learned senior Counsel Mr. E. Manohar appearing for the petitioners and the learned Advocate-General assisted by the learned Government Pleader for Municipality argued the matter at length.
9. The issue that arises for consideration in the writ petition is whether the petitioners are the owners of the property in question and whether the writ petition is maintainable and if so whether the petitioners arc entitled for the relief as prayed for in the writ petition.
10. The learned senior Counsel Mr. E. Manohar submits that the petitioners arc the owners of the land in question and he made an effort to sustain his argument by referring to the extract from the Book of Paigah Dynasty. He also submits that this land formed part of Basheerbagh palace. The area of 4,083 sq.yards lying to the northern side of Basheerbagh palace was allotted to the petitioners and that it is manifest from the letter issued by the Managing Committee of Paigah Klias Estate Nawab Iyanat Jung Moin-ud-Dowla Bahadur, dated 5th Sherewar, 1355-Fasli in File No.5/Atiyat Section 13--, addressed to the Awal Taluqdar, Dist. Basheerbagh, which reads as follows :
"In the above mentioned subject, kindly peruse the letter of the office of the Private Secretary, Peshi of the Amire-e-Paigah No.225, dated 27th, in which it is stated that under the approval of the H.E.H. the Nizam the land in question situated as part of Basheerbagh Palace in the North side and is granted to Sahabzadi Malika Jahan Begum and Sahabzada Nawab Mohd. Jalaluddin Khan. Hence duly after measurement and preparation of the plan, the special arrangement for its supervision be made.
Kindly comply the orders. The said letter is enclosed."
Thereafter a reply was sent by the Tahsildar stating that in pursuance of the letter dated 18th Shehrewar 1356 Fasli due measurements will be prepared and sent and they were accordingly sent by the Collector on 18th Dai 1357 Fasli. The plan was also annexed to the said letter and he also submits that a confirmation was also issued in File No.79/2, dated 9-10-1952 which reads as follows :
"With reference to the subject cited above, it is to state that the application dated 9th September, 1952 along with the copy of letter No.932/933, dated 5th Sharwar 1355 Fasli and letter No.852/864, dated 11th Mehar 1356 Fasli along with the prepared plan of Revenue Department Sarkara Ali Government have been received. All the aspects have been persued. It is confirmed that the allotted vacant land as part of the Basheerbagh palace, towards North Nala admeasuring 4,083 sq.yards to Nawab Zahir Yar Jung Bahadur's brother and sister. Therefore, authority in confirmation is sent."
The learned Counsel also takes me to the proceedings in Civil Suit No.7/1959 on the file of this Court relating to partition of the Royal Properties. In the said suit Basheerbagh Palace also formed part of suit schedule property at Sl.No.2 of Schedule 'B'. An application was filed in Application No.335/ 1962 in CS No.7/1958 by the Receiver on 26-7-1962 seeking setting apart an extent of 4,083 sq.yards on the northern side of Basheerbagh palace in favour of the petitioners. A plan was also enclosed to the said petition and the said petition was also allowed. Basing on these documents, the learned Counsel vehemently submits that the petitioners are the owners of this land of 4,083 sq.yards and nobody can claim this land. These documents would prima facie establish the ownership. He further submits that the authorities also assessed the land under the Non-Agricultural Assessment Act and also a sum of Rs.449.13 ps. was paid to the authorities on 3-2-1974 towards the NALA tax for 1963 to 1973 and further sum of Rs.4,757.28 ps. was paid on 15-5-1984 for the period from 1974 to 1984. He also submits that the Deputy Commissioner of Municipal Corporation issued proceedings dated 21-10-1997 calling upon the petitioners to pay a sum of Rs.23,795/- towards the property tax in respect of the premises bearing No.5-9-29/3/10 Basheerbagh Palace, from 1983 to 1997. Further suit in OS No.512/ 1997 was also filed by the petitioners against the illegal occupants seeking declarations that they are the owners of the property occupied by the defendants, which is formed part of the extent of 4,083 sq.yards. The learned Counsel also submits that in the pahani patriks of Gagan Mahal village, Sy.No.207 of Basheerbagh consisted of total extent of Ac.21 -09 gts. He further submits that the land which is said to have been allotted to the Municipality is nothing to do with the land which is possessed by the petitioners as the description of the properties mentioned in G.O. itself states that an extent of Ac.6-19 gts. was allotted to the Municipal Corporation in S.No.28 of Khairatabad whereas the present land is situated in Gagan Mahal. On the other hand, the learned Advocate-General submits that when the counters filed initially by the respondents, the matter relating to mentioning of S.No.28 of Khairatabad was not clearly clarified and that the lands, were subjected to resurvey under the Town Survey Act. The land in question fell in Gagan Mahal village and this was renumbered as Town Survey No.2/1, 2/2, and 3 and they are corelated to Nil survey numbers as the lands formed part of Gagan Mahal village (Abadi). Further under the provisions of Town Survey Act, once the notification is published it becomes final, unless the suit is filed within the stipulated period. Therefore, the entry relating to Gagan Mahal village became final. It is also stated that the extracts produced by the petitioners with regard to the Town Survey Register do not also tally with the originals maintained by the Government and contended that they are either fabricated or forged. It is also stated that the payment of NALA tax is not a conclusive proof that the petitioners are the owners. Further, the petitioners colluded with the Municipal Corporation authorities and obtained a letter from the Deputy Commissioner for the payment of the tax in respect of the building. But, however, when the authorities came to know that there is no such building at all in the Assessment Register maintained by the Municipal Corporation, the petitioners were intimated accordingly. Thus, the learned Advocate-General submits that the petitioners are colluded and obtained such a communication and necessary action was also initiated against the officials in the Municipal Corporation of Hyderabad.
11. He further submits that the road which is sought to be carved out may not be going through the land which is allotted to the Municipal Corporation, but, yet even in the remaining Government land, it is open for the Government to form a road, and therefore the petitioners have no manner of right to interfere with the activities carried on in the Government land.
12. I have given my anxious consideration to the matter. The entire issue revolves as to the ownership of 4,083 sq.yards which is being claimed by the petitioners. While the petitioners filed number of documents to show that they are the owners by virtue of the Farman and other documents issued from the Nizams Government and subsequent tax receipts etc. the same is being seriously disputed by the Government stating that the Government is the owner of the said land as the said land is forming part S.No.2/1, 2/2 and 3 of Gagan Mahal village. In view of the serious disputes of the ownership and title between the parties whether it is appropriate for this Court to adjudicate and decide the matter in writ proceedings under Article 226 of the Constitution of India. In the instant case, the petitioners are claiming that they arc deprived of their property and that the action of the authorities arc arbitrary and illegal offending Article 14 of the Constitution of India. But, at the same time, it has to be seen that the very subject-matter of the property is very seriously disputed. It is well settled that merely because the Government disputes the ownership of the private person, it would not oust the jurisdiction of this Court under Article 226 of the Constitution of India. But, at the same time, it is also to be considered that if the respective parties stake their claim with reference to substantial documentary evidence, would it be outside the scope of jurisdiction under Article 226. The file relating to G.O. Ms. No. 152, was also perused by me so as to see whether the entire survey No.28 of Khairatabad was having Ac.6-19 gts. or balance land was available. There was enormous correspondence with regard to the allotment of Ac.6-19 gts. to Municipal Corporation of Hyderabad. Originally the land was allotted to Animal Husbandary Department and subsequently after protracted correspondence, the decision was taken by the Government to allot to the Municipal Corporation and G.O. Ms. No. 152. A sketch was prepared which contains the signature of the Land Record Assistant and the Officials of the Municipal Corporation at page No. 129 of the File. It is also mentioned in the said plan as Khairatabad village. According to the map, it is seen that the total extent is Ac.9-22 gts. out of which Ac.6-19 gts. were handed over to the Municipal Corporation and the remaining area is still with the Government.
In the plan, the balance area was shown in red colour. Basing on this plan also, the learned Advocate-General submits that the petitioners can never be said to be the owners. On the other hand, the Government is the owner and after deducting Ac.6-19 gts. still, the Government is having Ac.3-03 gts. and therefore this itself indicates that the petitioners were in illegal possession of the land on the pretext that they are the owners having been allotted the same by the Nizams. Though the land has been mentioned as situated in Khairatabad, but in view of the explanation submitted by the respondents subsequently, it shows that this is forming part of Gagan Mahal village. Lastly, the learned Advocate-General also submits that some disputes were also raised by Mr. Chenoy with regard to the land and ultimately the subject-matter came before this Court in CCCA Nos.48 of 1963 and 67 of 1994. In the said judgment, the land in question was discussed relating to the change of survey numbers and village. He submits that in the said judgment, it was discussed as follows:
"Another document on which sondierable reliance was placed is Ex.B64 which is a report made by the Nizam, Land Records the Collector, Baghat District on behalf of Sarf-e-khas Mubarak, the Collector, Atrafe Badla District the Deputy Montamim Settlement who were nominated as members for conducting a joint enquiry in respect of the boundaries of the land situate at Bashir Bagh. The question which they had to consider was the boundaries and the extent of survey No.207 in Gagan Mahal village which was adjacent to the boundaries of Khairatabad village. Khairatabad was a sarf-e-khas village, whereas Gagan Mahal was a Khalsa or a Diwani village. Survey No.207 was in the name of late Nawab Sir Asman Jah Bahadur under the head of inam. In a portion of this land, Bashir Bagh was constructed and was enclosed by a wall. The remaining land was left vacant without any enclosure. However, in 1332-F. outside the compound wall towards the north-west in Khairatabad village, on behalf of Sarf-e-Khas Mubarakone 'Adapa' (sub-number) was formed and the land was given on patta and one Mr. Gopal Reddy purchased the same. When he tried to get possession, an objection was raised on behalf of the owners of Bashif Bagh and ultimately the possession of Gopal Reddy was upheld by the Criminal Court. He constructed also a house on the land in question and enclosed it by a wall. This land was shown in the plan annexed to the report is Ac.3-11 guntas. The land remained in the possession and enjoyment of Bashir Bagh was shown as Ac. 17-04 guntas. As the total of these came to Ac.20-15 guntas which was less than the area of the survey No.207 by Ac.0-34 guntas, it was recommended that Ac.0-34 guntas should be inclided after phode from the north of the Bashir Bagh compound wall in the eastern portion. The report also says that the members are of unanimous opinion that the land which is in the possession and enjoyment of Gopal Reddy is a part of Survey No.207 of Khalsa Gagan Mahal village but in view of the judgment of the Criminal Court, the possession of Gopal Reddy had became authentic.
It was sought to be argued from this report that the suit land which is south of the land of Gopal Reddy which was then in dispute was held to have formed part of Bashir Bagh land and hence the Government cannot claim ownership. It was argued that, if at all the owners of Bashir Bagh could lay claim to that land and possession, and the plaintiff has to be protected by the Court against all except true owners. A perusal of the plan attached to this report clearly shows that even this contention is unfounded. The area is divided into four portions : (1) Bashir Bagh Ac.17-04 guntas; (2) Gopal Reddy Ac.3-11 guntas.
The portion in the north adjacent to the road is divided by a tar line. On the west of the tar line is (3) a portion of the extent of Ac.3-08 guntas which can easily be identified as corresponding to the suit land. To the east of this tar line is (4) an extent of Ac.6 and odd. It is, therefore, clear that when the Committee was referring to the Bashir Bagh comprising Ac. 17-04 guntas, it was referring only to portion (1) to the cast of Gopal Reddy's Bungalow and that extent did not include the suit land. The Committee recommended that Ac.0-34 guntas may be given to the owners of Bashir Bagh adjoining north of the Bashir Bagh compound wall in the eastern portion. If really the suit land was also held to be formed part of Bashir Bagh the total extent would be Ac. 17-04 guntas plus Ac.3-11 guntas plus Ac.3-08 guntas which would be much more than Ac. 21-0 guntas which according to the Government records was the total extent of Survey No.207. The contention that the suit land was held to be part of Survey No.207 belonging to Bashir Bagh is obviously untenable.
In view of the feet that even according to this document the suit land is within Gagan Mahal village and in view of the fact that in our previous orders we held that all the records pertaining to Survey of 1354-F in which the suit land was given Survey No.286 in Khairatabad village are inadmissible as the said survey was not proclaimed or announced, the learned Counsel for the appellant abandoned the plaintiff's case as laid down in the plaint that the suit land formed part of Khairatabad village, but proceeded on the footing that it is in Gagan Mahal village. His argument, however, was that the above proceedings indicate that it did not form part of Government land but formed part of the land belonging to the owners of Bashir Bagh, a contention which we have rejected as untenable."
But, however, the learned senior Counsel for the petitioner taking a clue from the said judgment, submits that out of Ac.21-09 gts. covered by 207 survey number of Gagan Mahal village, an extent of 34 guntas was recommended to be given to the owners of Basheerbagh palace which is falling north of the Basheerbagh compound wall in the eastern portion. This 34 guntas is the land which is being claimed by the petitioners. The learned Advocate-General also submits that a fly over is sanctioned and in order to construct the fly over the diversion of traffic at Basheerbagh is necessary and therefore by virtue of the proceedings, the entire construction came to a stand still. I am not inclined to go into this aspect. The matter is seriously disputed and the parties are asserting their respective rights with reference to voluminous documents. The documents filed by the petitioners are denied and the respondents went to the extent of contending that they arc forged and fabricated. Similarly, the petitioners are disputing the genuineness of the documents filed by the respondents. It is not the function of this Court under Article 226 of the Constitution of India to scan the documents and render findings about their genuineness and evidentiary value for the purpose of ascertaining the ownership and title of the property. The writ of mandamus is considered to be a constitutional bliss, yet pure questions of facts have to be resolved by the common Law Courts. Therefore, it is for the parties to approach the civil Court to establish their rights with reference to the documents and other evidence available with them, and seek appropriate declarations. Though the learned senior Counsel submits that prima facie the petitioners are able to establish the case and therefore driving them to civil Court is nothing, but to depriving them of their right to enjoy the property. I am unable to accept this contention. It is only when the ownership of the property is not disputed by the State, it would be open for this Court to interfere if any arbitrary action is taken by the Government. But, in the instant case, the Government is seriously disputing the ownership of the petitioners and also produced number of documents to establish that the land belongs to Government.
13. Under these circumstances, I am of the considered view that the writ jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked for deciding the title or ownership of the property. Accordingly, the writ petition fails and is dismissed. However, this order will not preclude the petitioners from approaching the civil Court for appropriate relief. In such an event the Court shall deal with the matter untrammelled by any observation made in this writ petition. No costs.