Telangana High Court

Mohd. Mazarulla Khan vs The State Of Telangana on 31 January, 2023

Bench: K. Sarath

       THE HONOURABLE SRI JUSTICE K.SARATH

             WRIT PETITION No.19540 of 2020

ORDER:

This writ petition is filed for the following relief:

".....to issue an order or orders or direction or writ more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.2 to 4 in trying to dispossess the petitioner from his patta land of an extent of Ac.1.27 gts in Sy.No.70/2-B of Kataram Village and Mandal, Karimnagar District for construction of Bus depot as illegal, arbitrary, malafide, intentional, and in violation to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and consequently restrain the respondents not to take any forcible possession in the interests of justice"

2. Heard Sri K.V.Bhanu Prasad, Learned counsel for the

petitioner and Sri Andapalli Sanjeev Kumar, Learned Special

Government Pleader for Additional Advocate General

appearing for the respondents.

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3. Learned counsel for the petitioner submits that

the father of the petitioner Late Sri Anwarulla Khan

purchased land admeasuring to an extent of Ac.2.37 gts in

Sy.No.70/2-B Situated at Kataram Village and Mandal,

Jayashankar Bhupalpalli District on 01.06.1991 under a

registered sale deed. After death of the father of the

petitioner, the petitioner came over the said property as

absolute owner. During the life time, the father of the

petitioner sold the land admeasuring to an extent of Ac.1.10

gts to the third party and the balance extent of Ac.1.27 gts of

land with the possession and enjoyment of the petitioner.

4. Learned counsel for the petitioner submits that at one

point of time, at the instance of local MLA there was a

proposal of construction of bus-station to cater the needs of

the public and contacted whether any individual was willing

to give the land at free of cost. The Ex-sarpanch of the

village Sri Mohd. Rahimulla Khan because of his political ::3::

affiliation agreed to give an extent of land Ac.0.20 gts for

construction of bus-station. The father of the petitioner

never agreed to give any piece of land without paying any

compensation as the land is adjacent to the main road.

However, there was correspondence between the Executive

Engineer and Assistant Engineer of the then A.P.S.R.T.C and

in letter dated 20.07.1988, the site No.1, Ac.0.35 guntas of

land was offered by V.Nanda Kishore at Garapalli Village and

the site No.2, Ac.0.20 guntas of land in Sy.No.70/3 was

offered by the father of the petitioner. Curiously the said

letter does not indicate the survey number of Ac.0.35 guntas

which is site No.1 and in respect of site No.2 though the

father of the petitioner name was mentioned in survey

number was wrongly mentioned and directed the Assistant

Engineer to contact the persons to take over the sites.

Thereafter, the said Assistant Engineer could not take any

possession as father of the petitioner cannot agreed to give ::4::

land free of cost and he was in enjoyment till his death. As

on today there is no bus-station and idea to construction of

bus-station was dropped. However, due to local politics the

petitioner and his mother was sought to be dispossessed

stating that there was an unregistered gift in favour of the

respondent Nos.1 to 3. In fact, there was no such

unregistered gift and the same is created to justify the illegal

action. Under those circumstances, the petitioner and his

mother filed W.P.No.575 of 2014 to questioning the

highhanded action of the respondents herein before this

court. Initially, granted interim orders passed by this court

on 09.01.2014. Thereafter, mother of the petitioner was died

and the petitioner realized that the correct facts were not

stated in the said writ petition and the same was withdrawn

with liberty to file a fresh writ petition. Now, the petitioner

filed present writ petition to questioning highhandedness of

the respondents in trying to dispossess the petitioner from ::5::

patta land in violation to the Right to Fair Compensation and

Transparency according to Land Acquisition, Rehabilitation

and Resettlement Act, 2013 and requested to allow the writ

petition.

5. Learned Special Government Pleader appearing for the

respondents submits that this Writ Petition is liable to be

dismissed on the ground of suppression of material facts

and the father of the petitioner was gifted the land

admeasuring to an extent of Ac.1.00 Gts in Sy.No.70/B in

Kataram Village as per Muslim Law by way of (Hiba) gift

dated 10.06.1989 for construction of bus-station and on the

same day the Respondent-Corporation took over the

possession of the subject property by way of conducting

Panchanama. Since then, the Respondent-Corporation is in

peaceful possession and enjoyment of the subject property.

The petitioner and his mother earlier filed W.P.No.575 of

2014, and the respondents filed counter in the writ petition ::6::

and in Para 5 of the counter categorically stated that the

petitioner and his mother filed O.S.No.2 of 2014 before the

Junior Civil Judge Court at Manthani praying for a direction

against the respondent Nos.2 to 3 not to interfere into the

possession of the petitioner in Ac.1.27 guntas of land in

Sy.No.72/B at Kataram Village. After receiving counter the

petitioner withdrawn the same, seeking permission to file a

fresh writ petition with liberty. In the present writ petition

also the petitioner suppressed the said fact of filing of

O.S.No.2 of 2014. The Respondent-Corporation contested

the said suit. The trial court dismissed O.S.No.2 of 2014 on

12.03.2019 by recording the reasons that "the Court has

given lot of opportunities and chances to the plaintiff, but

the plaintiff could not take any steps to lead their evidence

even though the stage is coming for finally. It seems that the

plaintiff is not interested to proceed with the suit and the

suit was dismissed for default". This writ petition is liable to ::7::

dismissed on the ground of suppression of the fact of

dismissal of the above suit.

6. Learned Special Government Pleader further submits

that the father of the petitioner was gifted (Hiba) the subject

property to the respondent-Corporation for construction of

bus-station and in the present writ petition, the petitioner is

disputing the gift (Hiba) given by his father and also for the

construction of the Bus-Station. There is disputed question

of title and facts. This court cannot decide the disputed

question of title and facts under Article 226 of Constitution

of India. The settled principle of law that all disputed

question of title and facts should be decided by the

competent Civil Court only. In view of the same, requested

to dismiss the writ petition.

7. Learned Special Government Pleader appearing for the

respondents relied the following judgments.

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i) M.C.D Vs State of Delhi and Ors1.

ii) Municipal Corporation, Aurangabad Vs State of

Maharashtra and Ors2.

iii) Kishore Samrite Vs State of U.P and Ors3.

8. After hearing both sides this Court is of considered

view that as per the writ affidavit, father of the petitioner

purchased scheduled property through registered document

on 01.06.1991 and in contra the petitioner stating that there

was a correspondence between the authorities vide letter

dated 20.07.1988 and the Assistant Engineer directed to

take over the possession of the land from father of the

petitioner. The respondent-Corporation also stating that

there was gift (Hiba) in their favour given by father of the

petitioner on 10.06.1989 for construction of bus-station.

Moreover, the petitioner and his mother filed suit for

2005 (4) SCC 605

2015 (16) SCC 689

2013 (2) SCC 398 ::9::

perpetual injunction against the respondent-Corporation

herein in O.S.No.2 of 2014 on the file of the Principal Junior

Civil Judge at Manthani and the same was dismissed for

default on 12.03.2019. The petitioner and his mother filed

W.P.No.575 of 2014 before this Court and the respondents

categorically stated in their counter in W.P.No.575 of 2014

that the petitioner filed O.S.No.2 of 2014 before the Principal

Civil Judge, Manthani and the same was dismissed for

default. The above said writ petition was withdrawn without

filing the reply to the said counter. After that the petitioner

filed the present writ petition on the same ground

suppressing the fact that O.S.No.2 of 2014 was dismissed for

default on 12.03.2019. On the other hand, the respondents

stating that the bus-stand was inaugurated by the then MLA

on 16.06.2000 and at no point of time, the petitioner was in

the possession of the property and the question of initiating

proceedings according to Land Acquisition Act, 2013 does ::10::

not arise. The judgments relied by the Special Government

Pleader apply to the instant case.

9. The Hon'ble Supreme Court in Municipal

Corporation, Aurangabad Vs The State of Maharashra

and Ors (Supra 2) at Para 8, categorically held that:

'.....the disputed question of fact was raised by the parties with regard to the title over the land in possession is not a fit case for the High Court to decide the question of mutation doubting the title in a petition under Article 226 of the Constitution of India....'

10. In M.C.D Vs State of Delhi and Ors (Supra 1) the

Hon'ble Apex Court, at para No.21, held that :

'.......in our opinion it would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court and he ::11::