THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.7650 of 2019
ORDER:
Aggrieved by the action of the respondent Nos.2 to 4 in carrying illegal and unauthorized construction of 'Foot over Bridge' (FOB) in the waqf land of the petitioner Institution, the present writ petition is filed.
The case of the petitioner, in brief, is that the petitioner is a Waqf Institution known as 'Eid Gaah & Chilla Mahboob Subhani, Maqta Madar Saheb, Khairatabad", situated in land admeasuring 6171 sq. yards in survey No.9 at Khairatabad, Hyderabad, and the same is a registered and notified Waqf property under Gazette No.40, dated 14.02.2014 and 30.12.2015 under the Mutawaliship of the respondent No.5. It is the further case of the petitioner that the respondent No.2 through respondent No.3 has commenced the construction of FOB adjacent to the land of the petitioner and for the said purpose the workmen of respondent Nos.2 and 3 have illegally entered into and encroached the land of the petitioner Institution to an extent of 50'. In spite of the resistance put up by the petitioner, the respondent Nos.2 and 3 have proceeded with the illegal construction and the petitioner made a complaint dated 05.12.2018 to the SHO, PS Ramgopalpet Station, Secunderabad. The petitioner also made a representation to respondent No.5 on 20.03.2019. Pursuant to the said representation, respondent No.5 had addressed a letter dated 22.11.2019 to respondent No.2 directing to stop the illegal and unauthorized construction. In spite of the same, the respondent No.2 proceeded further with construction. Aggrieved by the same, the present writ petition is filed.
2 AAR, J
W.P.No.7650 of 2019
While admitting the writ petition on 17.04.2019 this Court has granted interim order in favour of the petitioner.
Along with vacate stay petition, the respondent HMDA filed a counter affidavit mainly contending that the entire land in survey No.9 is reflected as 'Shikham Talab Hussain Sagar' and that the total area as per the TSLR is 4865984 sq. mtrs. It is further stated that 5th respondent has no power or jurisdiction in the subject matter and it is the Revenue Department which can ascertain and confirm the ownership of the property. The construction activity for the FOB is being undertaken only in government land and the same does not belong to the petitioner. It is also stated that site where the FOB is being constructed is in front of the Peoples Plaza and that in the TSLR the entire land is reflected as government land and presently, the said area is being used for parking purpose by the public.
Heard the learned counsel for the petitioner, the learned Government Pleader for Municipal Administration and Urban Development for respondent No.1, learned Standing Counsel for HMDA for respondent Nos.2 and 3, learned Standing Counsel for GHMC for respondent No.4, and the learned Standing Counsel for Waqf Board for respondent No.5. Perused the record.
It is the contention of the petitioner that the official respondents are constructing FOB in the land of the petitioner belonging to the Waqf. Even though they have approached the Waqf Tribunal and filed a suit along with an interlocutory application seeking interim injunction order, the authorities are still continuing the work. Therefore, they had to approach this Court by way of writ petition.
3 AAR, J
W.P.No.7650 of 2019
Per contra, the learned Standing Counsel for HMDA has stated that no interim orders are passed in the suit filed by the petitioner before the Waqf Tribunal. As per the TSLR records, the site where the FOB is being constructed is the government land. That this Court had granted interim direction only due to absence of the Standing Counsel on the particular date of hearing but not on the merits of the case. The learned Standing Counsel further states that the construction of the FOB is for public purpose and the petitioner cannot be permitted to meddle with the same. The only remedy available to the petitioner is to pursue the suit pending before the Waqf Tribunal and the writ petition is liable to be dismissed.
A perusal of the material on record shows that except filing the notification issued under Section 6 of the Waqf Act wherein the petitioner is claiming that the subject land admeasuring 6171 square yards equivalent to Ac.1-11 guntas bearing H.No.6-3- 1240/195/A, which is popularly known as Maqta Madar Saheb, in survey No.9 situated at Khairatabad Village, Hyderabad, no other document is filed by the petitioner in proof of its ownership. Though the notification is filed, the petitioner did not bother to file the site map or any other map to show the location of the site where the construction is taking place or that the same is falling in the area of the subject property.
After going through the documents filed by both the parties, it is found that the total area of Survey No.9 is more than Acs.1204-45 guntas. The FOB is being constructed for the benefit and use of the pedestrians who are coming to visit Peoples Plaza and also the Necklace road. As seen from the TSLR record, the FOB is falling in TS No.5/1 and the same is recorded in the revenue 4 AAR, J W.P.No.7650 of 2019 records as a Government land. Even though there is no dispute with regard to the Waqf notification issued by the petitioner and the rights of the parties to the land which is notified, in the absence of any site map or any record to show that the land which is being claimed by the petitioner is the very same land on which the encroachment is done and the FOB is being constructed, this Court is not in a position to come to a conclusion as to whether the Waqf land is being encroached and the FOB is constructed in the Waqf land. The interim order, which was granted on 17.04.2019, was granted only on the ground that even though the papers were served on the learned Standing Counsel and time was granted for obtaining instructions, he could not get necessary instructions on that day, but not on merits of the case. When a specific stand is taken by the respondents that the place where the FOB is being constructed is falling in TS No.5/1, Block-B, ward-80 co-related to survey No.9/P of Khairatabad, the petitioner ought to have filed some documents to show that the land notified is one and the same. The boundaries shown in the notification are very vague and difficult to give the exact location of the site in dispute. That apart, the entire area of survey No.9 consists of more than Acs.1204-45 gts., whereas, the Waqf notification, on the basis of which the petitioner is claiming, pertains to only Ac.1-11 guntas. In the absence of any site map or survey record, it is not possible for this Court to come to the conclusion as to whether the site where the FOB is being constructed is the one as reflected in the notification or not. In view of the above, this Court is not inclined to continue the stay granted earlier and the same stands vacated. As no useful purpose will be served if the writ petition is kept pending, the writ petition is also disposed of.
5 AAR, J
W.P.No.7650 of 2019
Further, as the petitioner has already approached the Waqf Tribunal by filing O.S.No.792 of 2016 (the nature of relief is not known as the petitioner has not filed a copy of the same), it can raise all the contentions before the Waqf Tribunal and in case the Waqf Tribunal comes to the conclusion that the land claimed by the petitioner and the site on which the FOB is being constructed is one and the same, the petitioner is entitled to get compensation under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It is for the petitioner to establish before the Waqf Tribunal along with all relevant documents that the site where the FOB is being constructed belongs to the notified Waqf.
With above observations, the Writ Petition is disposed of and the interim order granted by this Court on 17.04.2019 stands vacated. However, it is made clear that the HMDA shall abide by the judgment and decree passed by the Waqf Tribunal in O.S.No.792 of 2016. If the HMDA is not made as a party to the above suit, the petitioner shall take steps to implead the HMDA as a party respondent to the said suit.
Miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 06-04-2021 sur