Eid Gaah And Chilla Mahboob ... vs The State Of Telangana,
2021 Latest Caselaw 1075 Tel

         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