Telangana High Court

St. Gabriel S High School vs The State Of Telangana And 4 Others on 13 May, 2021

Bench: A.Abhishek Reddy

          THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

                WRIT PETITION No. 17445 of 2020
ORDER:

The present writ petition is filed seeking to declare the action

of the respondents in demolishing the compound wall of the

petitioner School on 01.10.2020 to an extent of Acs.0.27 guntas in

Survey Nos.139, 140 and 141 of Somidi Village, Kazipet Mandal,

Warangal Urban District, as illegal and arbitrary and consequently to

direct the respondents not to enter into the lands of the petitioner

School.

The case of the petitioner - St. Gabriel's High School, in brief,

is that it was established in the year 1955 by the Brothers of

St.Grabriel Educational Society (in short 'Society') for the purpose of

imparting education to the students. The Society is the owner of the

lands, admeasuring Acs.40.70 guntas in Survey Nos.139, 140 and 141

of Somidi Village, Kazipet Mandal, Warangal Urban District, having

purchased the same under various sale deeds and the Society is in

possession of the same. While so, in the year 1984, a requisition was

made to the respondent No.1 for providing playground to the

petitioner School. Based on the said requisition, the land acquisition

proceedings were initiated for acquiring the lands for the benefit of

the petitioner. The Land Acquisition Officer has passed an Award

on 19.12.1983 fixing the market value of the acquired land at Rs.3.50

paise per square yard. On reference, the Principal Subordinate Judge,

Warangal, vide judgment and decree dated 24.09.1987 in O.P.No.10 of

1984 had enhanced the market value of the acquired land to Rs.20/-

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                                                     W.P. No.17445 of 2020

per square yard, and the same was confirmed by this Court in

A.S.No.1829 of 1988 vide judgment dated 08.11.2005. Accordingly,

the petitioner had paid the compensation to the respective land

owners. During the interregnum period, proceedings were initiated

by the then State of Andhra Pradesh in L.G.C.No.120 of 1999 against

one Bro. John Kalarkal, the then Principal of the petitioner School,

and the said L.G.C. was disposed by judgment dated 22.04.2003

holding that the respondent - Bro. John Kalarkal was a land grabber

and he was directed to deliver vacant possession of the subject

property of L.G.C. to the applicant. However, it is stated that Bro.

John Kalarkal had no independent right, title or interest in the land,

which is the subject matter of L.G.C., and the land admeasuring

Acs.40.70 guntas belongs to the petitioner only as the sale deeds are

in favour of the petitioner. It is further stated that the petitioner had

constructed a building consisting of Ground + one floor in the land

purchased by it and running the school therein. Respondent No.5 is

also collecting property tax from the petitioner regularly.

While so, the respondent No.1 initiated proceedings under the

Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short, 'the Act') for

acquisition of lands to an extent of Ac.2.13 guntas in Survey Nos.139,

140/1, 141/1 and 142 for the purpose of second ROB between

Hanamkonda-Kazipet at 163 km 133/4 to 134/2 and Railway Km

365/31-33 of Kazipet-Ballarsha Section in Warangal (urban) District.

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                                                   W.P. No.17445 of 2020

An extent of Ac.0.27 guntas of land belonging to the petitioner was

also included in the said land acquisition.

It is further stated that the respondent No.3 vide Memo dated

28.09.2020 has rejected the claim of the petitioner for payment of

compensation in respect of Ac.0.22 guntas of land and the said Memo

was served on the petitioner on 30.09.2020. However, on 28.09.2020

itself, the authorities, with the help of police officials, tried to

demolish the compound wall of the petitioner School and the same

was resisted by the petitioner. Again, on 01.10.2020, the respondent

authorities, without issuing any prior notice to the petitioner, have

high handedly demolished the portion of the compound wall of the

petitioner School. Assailing the same, the present writ petition is

filed.

The respondent No.3 - the Revenue Divisional Officer-cum-

Land Acquisition Officer, Warangal, had filed a counter affidavit on

behalf of respondent Nos.1 to 4 mainly contending that pursuant to

the judgment dated 22.04.2003 passed in L.G.C.No.120 of 1999, the

Mandal Revenue Inspector, Hanamkonda, had taken over the

possession of the subject lands i.e., an extent of Ac.0.25 guntas

equivalent to 3025 sq. yards in Survey No.139 and an extent of

Ac.0.09 guntas equivalent to 1089 sq. yards in Survey No.140, totally

admeasuring Ac.0-34 guntas, under a cover of panchanama on

04.08.2004 and ever since then, the lands are vested with the

Government. It is further stated that proceedings were initiated

under the Act for acquisition of land to an extent of Acs.2.23 guntas 4 AAR, J W.P. No.17445 of 2020

for the purpose of second ROB between Hanamkonda -Kazipet on

NH 163. Out of the said extent of Ac.2.23 guntas of land, Ac.1.32

guntas of land is situated in Somidi Village, including the subject

land i.e., Ac.0.16 guntas in Survey No.139, Ac.0.06 guntas in Survey

No.140/2, Ac.0.05 guntas in Survey No.141/1, and Ac.1.05 guntas in

Survey No.142. But, the petitioner has not filed any objections within

the stipulated time for the acquisition of the land. It is specifically

stated that the Land Acquisition Officer has passed an Award in

respect of the land to an extent of Ac.0.05 guntas only in Survey

No.141/1 for compensation. However, no Award was passed in

respect of Ac.0.22 guntas of land since it is government land. In

reply to the representation of the petitioner dated 24.08.2020, Memo

dated 28.09.2020 has been issued informing that the claim of the

petitioner for payment of compensation in respect of the land in

Survey No.139 to an extent of Ac.0.16 guntas and in Survey No.140 to

an extent of Ac.0.06 guntas, total to an extent of Ac.0.22 guntas, is

rejected as the said land is classified as Khareej Khata (Government

Land) in the Revenue Records, and therefore, the petitioner is not

entitled for compensation in respect of the said land. The District

Collector, Warangal Urban, has approved the draft Award in respect

of the land admeasuring Ac.0.05 guntas in Survey No.141/1 @

Rs.20,500/- per Square Yard, amounting to Rs.1,24,02,500/- vide

proceedings dated 31.07.2019. Accordingly, Award was passed on

05.08.2019 and bills were also prepared and submitted to Projects &

Works, PAO, Chinthagattu, on 28.07.2020 vide Bill Token No.832820 5 AAR, J W.P. No.17445 of 2020

dated 28.07.2020. It is specifically asserted that till the compensation

is paid to the petitioner in respect of the land admeasuring Ac.0.05

guntas in Survey No.141/1, the possession will not be taken and

handed over to the requisition department. Hence, it is prayed to

dismiss the writ petition.

A reply has been filed by the petitioner denying the material

allegations made in the counter affidavit and stating that mere

entries in the Revenue Records that the lands to an extent of Ac.0.16

guntas in Survey No.139 and an extent of Ac.0.06 guntas in Survey

No.140 are government lands and the same cannot be taken as the

sole criteria to confer title on the respondents. The panchanama

dated 04.08.2004, which was drafted while taking physical

possession of the lands pursuant to the orders passed in L.G.C. was

also denied and it is specifically stated that the petitioner is in

possession of the said lands. The factum of the petitioner

participating in the award enquiry on 25.02.2019 and passing of

award by the respondents on 05.08.2019 is also denied by the

petitioner. Thus, it is prayed to allow the writ petition.

Heard Sri M.V. Suresh, the learned counsel for the petitioner,

the learned Government Pleader for Land Acquisition for respondent

Nos.1 to 4, and Ms.Pingali Lakshmi, the learned Standing Counsel

for respondent No.5. Perused the material on record.

As seen from the record, the subject matter of the writ petition

is an extent of Ac.0.22 guntas, in respect of which, the claim of the

petitioner for payment of compensation was rejected. An extent of 6 AAR, J W.P. No.17445 of 2020

Ac.2.13 guntas of land, which was sought to be acquired, was

notified under Section 11 of the Act. As per Form-C Notification, the

land of the petitioner i.e., Ac.0.16 guntas in Survey No.139, Ac.0.06

guntas in Survey No.140/1 (wrongly shown as Survey No.140/1

instead of Survey No.140/2 as per the counter affidavit filed by the

official respondents) and Ac.0.05 guntas in Survey No.141/1, totally

admeasuring Ac.0.27 guntas was also notified. The respondent No.3

vide Memo dated 28.09.2020 has rejected the claim of the petitioner

insofar as Ac.0.22 guntas of land i.e, Ac.0.16 guntas in Survey No.139

and Ac.0.06 guntas in Survey No.140. However, according to the

petitioner, the official respondents have agreed to pay compensation

in respect of Acs.0.05 guntas of land in Survey No.141/1. Even

though the petitioner has stated that it is the owner of Ac.40.70

guntas of land in Survey Nos.139, 140 and 141 of Somidi Village, the

petitioner has not produced any evidence in support of the same.

Furthermore, the petitioner is mainly relying on the judgment dated

08.11.2005 passed by this Court in A.S.No.1829 of 1988, which was

filed against the judgment and decree dated 24.09.1987, passed by

the Principal Subordinate Judge, Warangal, in O.P.No.10 of 1984.

The subject matter of the said O.P. is 3630 square yards equivalent to

Ac.0.30 guntas of land in Survey No.140/2 (as per the record, it

should be Survey No.140/1). The said Ac.0.30 guntas of land was

acquired by the Government for the benefit of the petitioner herein

and it is not in dispute that the petitioner is in possession of the said

land.

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                                                    W.P. No.17445 of 2020

The only issue that is to be decided in the present writ petition

is as to whether the petitioner is the owner of the land admeasuring

Ac.0.22 guntas of land i.e., Ac.0.16 guntas in Survey No.139 and

Ac.0.06 guntas in Survey No.140/2 or not ?

A perusal of the record, more particularly, the judgment dated

22.04.2003 passed by the Special Court under A.P. Land Grabbing

(Prohibition) Act, Hyderabad, in L.G.C.No.120 of 1999 discloses that

the then State of Andhra Pradesh represented by the Mandal

Revenue Officer, Hanamkonda, Warangal District, has filed the said

L.G.C. against Bro. John Kalarkal, who was working as the Principal

of the petitioner School, alleging that the said Bro. John Kalarkal had

grabbed an extent of Ac.0.34 guntas of land i.e., Ac.0.25 guntas in

Survey No.139 and Ac.0.09 guntas in Survey No.140. According to

the applicant therein, the said land was shown as Government land

in the Revenue Records. The Special Court, after taking into

consideration the oral and documentary entire evidence on record,

held that the Government is the owner of the said Ac.0.34 guntas of

land and the respondent, Bro. John Kalarkal, is a land grabber.

Pursuant to the said judgment dated 22.04.2003, the official

respondents have taken possession of the said Ac.0.34 guntas of land

vide panchanama dated 04.08.2004.

Once the Special Court has given judgment in favour of the

Government, and the same has become final, as no appeal is filed

against the said judgment, this Court sitting under Article 226 of the 8 AAR, J W.P. No.17445 of 2020

Constitution of India cannot go into the correctness or otherwise of

the said judgment.

The petitioner school has taken a stand that the L.G.C. filed

against Bro. John Kalarkal had nothing to do with the school and that

the school was not a party to the said L.G.C. Admittedly, the

judgment of the Special Court is akin to that of a Civil Court, and the

judgments passed by the Special Court are in rem and not in

personam. As seen from the various contentions raised by the parties,

the identity of the property that is now sought to be acquired is also

in dispute. Whether the land is one and the same as that was

acquired earlier for the benefit of the petitioner school or a different

one, and whether the land is falling in survey No.140/1 or 140/2, are

all matters which a competent Civil Court can go into after the

parties have let in evidence. This Court under Article 226 of the

Constitution of India cannot go into all those disputed questions of

fact without there being any evidence on record. The Authority

constituted under Section 51 of the Act has all the necessary powers

as that of the Civil Court and therefore the party can approach the

said authority or the Civil Court, as they deem fit. Moreover, the

petitioner has not filed any documentary proof except filing the

judgment dated 10.08.1972, passed by the Subordinate Judge,

Warangal, in O.P.No.39 of 1971, the judgment dated 24.09.1987

passed by the Subordinate judge, Warangal, in O.P.No.10 of 1984,

and the judgment of this Court dated 08.11.2005 in A.S.No.1829 of

1988, to substantiate that the land admeasuring Ac.0.22 guntas of 9 AAR, J W.P. No.17445 of 2020

land, in respect of which the claim made by it has been rejected by

the respondent No.3, is a private patta land belonging to the

petitioner.

In the letter dated 24.08.2020 addressed by the Correspondent

of the petitioner School to the respondent No.3-Revenue Divisional

Officer-cum-Land Acquisition Officer, Warangal, it is specifically

stated as under:

"The said Survey nos. have been under the possession of St. Gabriel High School management for the last 65 years and also we do have documents with regard to the survey nos. showing how the management procured/purchased this land for the purpose of play grounds."

Moreover, in view of the specific stand taken by the official

respondents in their counter affidavit that an Award was already

passed by the authorities on 05.08.2019 insofar as Ac.0.05 guntas of

land in Survey No.141/1 is concerned, and that they are willing to

pay compensation for the said extent of land to the petitioner, it is

necessary to refer to Section 64 of the Act, which reads as under:

"64. Reference to Authority:--

(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested:

Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority:

Provided further that where the Collector fails to make such reference within the period so specified, 10 AAR, J W.P. No.17445 of 2020

the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days. (2) The application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made--

(a) person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 21, or within six months from the date of the Collector's award, whichever period shall first expire:

Provided further that the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso."

In view of the aforementioned reasons, and since the

petitioner failed to prove that it is the owner of Ac.0.22 guntas of

land i.e., Ac.0.16 guntas in Survey No.139 and Ac.0.06 guntas in

Survey No.140, this Court is not inclined to entertain this Writ

Petition. However, if the petitioner has any grievance insofar as the

rejection of its claim in respect of Ac.0.22 guntas of land is concerned,

the remedy available to it is to approach the competent authority

under Section 64 of the Act and file an application along with

necessary documents substantiating its claim, or to approach the

competent Civil Court seeking declaration of title. In the event the

petitioner files any such application under Section 64 of the Act, the

authority concerned shall consider the same and pass necessary