Telangana High Court
K. Venkata Sathya Bhooshan, vs The State Of Telangana, on 30 July, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
WRIT PETITION No.39834 OF 2017
Between:
K.Venkata Sathya Bhooshan
... Petitioner
And
The State of Telangana and others
... Respondents
JUDGMENT PRONOUNCED ON: 30.07.2024
THE HON'BLE MRS. JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
________________________________
MRS. JUSTICE SUREPALLI NANDA
2
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IN THE HIGH COURT OF TELANGANA AT HYDERABAD
WRIT PETITION No.39834 OF 2017
% 30.07.2024
Between:
# K.Venkata Sathya Bhooshan
... Petitioner
And
$ The State of Telangana and others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners : Sri Ennemsetty Akhil
^ Counsel for the Respondents: GP for Municipal Administration
Urban Development for R1.
Sri M.Ajay Kumar, learned
standing counsel for R2 & R5.
Learned standing counsel for
TSRTC for R3 & R4
? Cases Referred:
1.(2021) 6 SCC 771
2.(2021) SCC Online SC page 801
3.(1998) 8 SCC 1
3
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HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.39834 OF 2017
ORDER:
Heard Sri Ennamsetty Akhil, learned counsel
appearing on behalf of the petitioner, learned Government
Pleader for Municipal Administration Urban Development
appearing on behalf of respondent No.1, Sri M.Ajay
Kumar, learned standing counsel for KUDA appearing on
behalf of respondent Nos. 2 & 5 and learned standing
counsel for TSRTC appearing on behalf of respondent Nos.
3 & 4.
2. The petitioner approached the court seeking the
prayer as under:
"....to issue a writ, order or direction more
particularly one in the nature of writ of Mandamus
declaring the impugned action of the respondents
particularly respondents 3 and 4 in undertaking
construction activity in the land of the petitioner
admeasuring 1890 Sq.yards in Survey No.344B (old)
345D(old) with new Sruvey No.205A to D &E (New), at
Waddepally Revenue Village, Hanumakonda(M), Warangal
Urban District, for establishing HPCL Petrol bunk without
initiating any acquisition proceedings etc., under right to
fair compensation Act of under any law of acquisition as
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highly illegal, arbitrary and violative of Article 14 & 300A of
the Constitution of India and pass such order or orders..."
3. The case of the Petitioner, in brief, as per the
averments made in the affidavit filed by the Petitioner in
support of the present writ petition is as under :
a) It is the case of the petitioner that, originally subject land
belongs to Mr.Gulam Mohammed Omer Khan, S/o.Md.Afzal Khan.
While, Md.Afzal Khan was alive, partition of property was
affected amongst late Md.Afzal khan and his brother Md.Baquash
Khan. The said partition was affected during Nizam's
Government, which was acknowledged by the First Class,
Talqdhar, Dist.Sarfa Khas Mubarak and the subject land fell to
the share of Mohd.Afzal Khan (i.e.) father of Gulam Mohammed
Omer Khan, who is in contiunuous possession and occupation
throughout. The petitioner herein has been settled with above
site admeasuring 1890.00 sq.yards situated in Survey No.344B
(old) 345D (old) at Waddepally Revenue village, Hanumakonda
(M) of Warangal Urban District with new Survey No.205A to D &
E (New).
b) It is the further case of the petitioner that since then the
petitioner has been in peaceful possession and enjoyment of the
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land. While so, all of a sudden the 3rd respondent corporation
through the 4th respondent had straight away undertaken
construction activity in a high handed manner by rising
basement in the land of petitioner, thereby to construct Petrol
Bunk under authorization of the HPCL. However, the Pahani
Patrika reflects the name of the pattedar as Sri Gulam
Mohammed Omer Khan and the petitioner name was also shown
in the column of occupier of the said property, in spite of this
clinching evidence, the respondent corporation out of their
advantageous position being a statutory corporation high
handedly had undertaken the construction of Petrol Bunk
through the 6th respondent. Aggrieved by the action of the 3rd
and 4th respondents, the present Writ Petition.
PERUSED THE RECORD:
4. The counter affidavit filed on behalf of respondent
No.3 and in particular para Nos. 2 and 3 read as under:-
2. In reply para No.1 of the Affidavit, it is respectfully
submitted that at the time of formation of APSRTC, lands
and buildings at 58 places were transferred as part and
parcel of assets by Government to Corporation through
G.O.Ms.No.93, dt.11.01.1958 of Home (Transport-IV)
Department, out of which, Hanumakonda land to an extent
of Ac.6.00 in Sy.No.344 is also one of the places. So the
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G.O.ms.No.93, dt.11.01.1958 is the title document
for all the 58 places. Since then the land is under
possession of Corporation. In view of this, Corporation is
the rightful owner of the said property and Corporation is
not aware of the sale transaction as mentioned by the
Petitioner.
3. In reply to para No.2 of the Affidavit it is
respectfully submitted that the Corporation is owner
of the land in Sy.No.344, it can utilize the land for its
development, hence the land was allotted to HPCL
Petrol Bunk on lease basis, which is not illegal.
5. The additional counter affidavit filed on behalf of
respondent Nos. 3 and 4 in February, 2018 and in
particular para No.3 reads as under:-
3. I respectfully submit that at the time of the formation
of the APSRTC, the State Government has transferred
certain properties to the APSRTC, vide G.O.Ms.No.93,
dated 11.1.1958. It is relevant hereinto submit that the
State Government has totally transferred 58 properties to
the 3rd Respondent Corporation, which includes the present
subject property. The 3rd Respondent Corporation is in
possession of the subject property, since the date of
transfer of the subject property by the State Government.
Neither petitioner nor his predecessors, have right or title
over the subject property. The subject property is the
Government property and it was transferred to the
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3rd Respondent Corporation by way of G.O.Ms.No.93,
dated 11.1.1958
6. Reply affidavit filed on behalf of the petitioner and in
particular para No.6 reads as under:-
6. I submit that the allegations made in paragraph No.3
are absolutely false and baseless. The corporation is not
the owner of the land in Sy.Nos.334B (old) 345D
(old) withnew Sy.No.205A to D and E (New), at
Waddepally Revenue Village, Hanumakonda Mandal,
Warangal Urban District, but I am the owner of the
said land and, as such, the Corporation occupying my
land without there being any authority is illegal, arbitrary,
unjust apart from being violative of principles of natural
justice.
DISCUSSION AND CONCLUSION:
7. A bare perusal of the record indicates that the specific
case of the petitioner is that petitioner is in possession of land to
an extent of 1890 Sq.yards in Survey No.344B (old) 345D(old)
with new Survey No.205A to D &E (New), at Waddepally
Revenue Village, Hanumakonda(M), Warangal Urban District. It
is further the specific case of the petitioner that Respondent
Corporation is not the owner of the subject land at any point of
time and the Respondent Corporation taking advantage of the
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fact that it is a public sector undertaking forcibly entered into
petitioner's land and constructed petrol bunk in petitioner's land
located in Waddepally Revenue village. On the contrary, the
specific case of the Respondent Nos. 3 and 4 is that at the time
of the formation of the APSRTC, the State Government has
totally transferred 58 properties, vide G.O.Ms.No.93, dated
11.01.1958 to the 3rd Respondent Corporation i.e.,APSRTC,
which includes the present subject property. The 3rd Respondent
Corporation is in possession of the subject property, since the
date of transfer of the subject property by the State
Government. Neither the petitioner nor his predecessors have
right or title over the subject property.
8. This Court opines that disputed questions of fact
cannot be adjudicated under writ jurisdiction. Admittedly
as borne on record the petitioner had not chosen to
challenge G.O.Ms.No.93, dated 11.01.1958 till as on date.
9. The Division Bench of Apex Court in a judgment dated
20.04.2021 reported in (2021) 6 SCC 771 in M/s.
Radhakrishnan Industries Vs. State of Himachal Pradesh,
referred to Whirlpool Corporation Vs. Registrar of Trade
Marks (reported in (1998) 8 SCC 1) and further the said
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view had been reiterated by a Full Bench of the Apex Court
(3 Judges) in a judgment reported in (2021) SCC Online
SC page 801 in Magadh Sugar and Energy Limited Vs.
State of Bihar and Others dated 24.09.2021 and in the said
judgment it is observed at para No.28 as under :
28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any
other purpose as well;
(ii) The High Court has the discretion not to
entertain a writ petition. One of the restrictions
placed on the power of the High Court is where
an effective alternate remedy is available to the
aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise
where (a) the writ petition has been filed for the
enforcement of a fundamental right protected by
Part III of the Constitution; (b) there has been a
violation of the principles of natural justice; (c)
the order or proceedings are wholly without
jurisdiction; or (d) the vires of a legislation is
challenged;
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(iv) An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of
the Constitution in an appropriate case though
ordinarily, a writ petition should not be
entertained when an efficacious alternate
remedy is provided by law;
(v) When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing
the right or liability, resort must be had to that
particular statutory remedy before invoking the
discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory
remedies is a rule of policy, convenience and
discretion; and
(vi) In cases where there are disputed questions of
fact, the High Court may decide to decline
jurisdiction in a writ petition. However, if the
High Court is objectively of the view that the
nature of the controversy requires the exercise
of its writ jurisdiction, such a view would not
readily be interfered with."
This Court opines that the present case falls under
Clause (vi) of the para No. 28 of judgment of the Apex
Court reported in (2021) SCC Online SC Page 801 in
Magadh Sugar and Energy Limited Vs. State of Bihar and
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Others dated 24.09.2021 referred to and extracted above,
to the extent that this Court declines to decide the
disputed questions of fact in the present case.
10. Taking into consideration:
i) That no interim orders had been passed in favour of
the petitioner till as on date though the Writ Petition is
filed in the year 2017.
ii) The averments made in the counter and additional
counter affidavit filed on behalf of respondent Nos. 3 & 4
iii) The observations of the Apex Court in the judgments
(referred to and extracted above),
a. (2021) 6 SCC 771, b. (1998) 8 SCC 1 and
c. (2021) SCC Online SC page 801.
The Writ Petition is dismissed, since it is devoid of
merits. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
________________________________
MRS. JUSTICE SUREPALLI NANDA
Dated :30.07.2024
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