IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:10514 of 2001 Between: 1 Sajib Mudtaba Sharief , S/o.Late Ali Sharief, R/o.H.No.7-1-1285, Pinjarla Street, Hanamkonda, Warangal District. 2 Jawad Mohd.Sharief, S/o.Late Ali Sharief, R/o.H.No.7-1-1285, Pinjarla Street, Hanamkonda, Warangal District. 3 Athar Ahmed Sharief, S/o.Late Ali Sharief, R/o.H.No.7-1-1285, Pinjarla Street, Hanamkonda, Warangal District. 4 Mushataq Hussain Sharief, S/o.Ali Sharief, R/o.H.No.7-1-1285, Pinjarla Street, Hanamkonda, Warangal District. ..... PETITIONERS AND 1 The Commissioner, Municipal Corporation, Warangal. 2 The District Colector, Warangal. 3 The Prl.Secretary, Muncipal Administration& urban Developement Department, State of Andhra Pradesh, Hyderabad. .....RESPONDENTS Counsel for the Petitioners:MR.P.PRABHAKAR REDDY Counsel for Respondent No.1:MR. U.DURGA NAGESWARA RAO Counsel for Respondent Nos.2 & 3: AGP FOR LAND ACQUISITION The Court made the following : ORDER: This writ petition is ﬁled for a writ of mandamus to declare the action of the respondents in not initiating land acquisition proceedings and not paying compensation to the petitioners in respect of Ac.0.04½ guntas of land in Survey No.737 of Warangal as arbitrary and illegal. The petitioners sought for a consequential direction to the respondents to acquire the said land by paying compensation. Heard Sri P.Prabhakar Reddy, learned counsel for the petitioners and perused the record. In their aﬃdavit, the petitioners averred that they are owners and pattadars of the above mentioned extent of the land; that the entire land in Survey No.737 was acquired for Warangal Municipal Corporation (for short ‘the Corporation’) except an extent of Ac.0.27 guntas of land and the compensation was paid 35 years back and that subsequently, the Corporation has taken possession of the said land admeasuring Ac.0.27 guntas. The petitioners further averred that at the time of taking possession, the Municipal authorities gave assurance that the compensation will be paid to them by initiating land acquisition proceedings; that as the Corporation failed to initiate acquisition proceedings, they made several representations and that at last, the Municipal Council, Warangal passed resolution No.725, dated 14.02.1989 to the eﬀect that the petitioners’ land in Survey No.737 to the extent of Ac.0.27 guntas was in it’s possession and therefore, compensation be paid or alternative land equivalent to the said extent be given to them. As no steps in pursuance of the said resolution were taken, the petitioners again approached respondent No.1 – Commissioner, Warangal Municipal Corporation, who in turn, addressed letter, dated 20.05.1998 to the Principal Secretary to Government, Municipal Administration informing that an extent of Ac.0.27 guntas of land in Survey No.737 situated in front of the oﬃce of the Corporation was taken possession from the petitioners and was developed as rock garden and that as per resolution, dated 14.02.1989, the petitioners have to be either provided alternative land or paid compensation at the market value of Rs.2,500/- per sq.yard, and he sought permission in that regard. The grievance of the petitioners is that despite the said letter, the respondents have not been taking any action. Respondent No.1 - Commissioner, Municipal Corporation of Warangal ﬁled a counter-aﬃdavit, wherein, it i s inter alia stated that the land in Survey No.737 was acquired by the answering respondent under award, dated 27.01.1966; that as per the draft declaration, the total extent of land in Survey No.737/A to D is Ac.1.27 guntas and compensation was paid to the pattadars 35 years back; that K.Naga Bhushanam, N.Laxmi Rajam and Dhananjaya ﬁled O.S.No.884 of 1994 on the ﬁle of the Principal District Munsif, Warangal, which was dismissed on 23.04.1997 and that after acquisition of the land, a layout was prepared under L.P.No.37 of 1979 and the petitioners with a mala fide intention to grab the alternative site or claim compensation, inﬂuenced the Corporators and got resolution No.725, dated 14.02.1989 passed. It is further stated that the said resolution was cancelled by the Corporation vide it’s resolution No.10, dated 09.02.2000, which was communicated to the Government. It is also stated that in the representation made by the petitioners, they clearly stated that their land was acquired and compensation was paid and that the remaining land in the said survey number was in their possession and, therefore, the question of payment of compensation by the answering respondent does not arise. In the reply aﬃdavit ﬁled by petitioner No.4, it is averred that only an extent of Ac.1.03 guntas of land in Survey No.737 was acquired and that out of the left over land of an extent of Ac.0.27 guntas, the petitioners are the owners of the land of an extent of Ac.0.04½ guntas, one Hussain Sharif is the owner of the land of an extent of Ac.0.09 guntas and N.Nagabushanam, N.Laxmirajam and Dhananjaya are the owners of the land of an extent of Ac.0.13½ guntas. Out of the acquired land, the extent of land belonging to the petitioners was Ac.0.21½ guntas. The petitioners reiterated their contention based on letter, dated 20.05.1998 addressed by respondent No.1, which reveals that the Corporation was in possession of Ac.0.27 guntas of land, which was not acquired. It is further averred that mere cancellation of resolution passed in 1989 by the Municipal Council on 09.02.2000 cannot wipe out their liability and that the said resolution was created in order to defeat the claim of the petitioners. It is also averred that O.S.No.824 of 1994 ﬁled for bare injunction was dismissed on the ground that Nagabushanam and others were not in possession and respondent No.1 Corporation was in possession of the land. At the hearing, Sri P.Prabhakar Reddy, learned counsel for the petitioners strenuously contended that the respondents denied the compensation to the petitioners on an erroneous premise that the total extent of land acquired was Ac.1.21 guntas, while the award clearly shows that the acquired land was only Ac.1.03 guntas. He stated that in view of the categorical statement of respondent No.1 contained in letter, dated 20.05.1998, wherein a clear admission was made that the land was developed as a rock garden, the action of respondent No.1 in not paying compensation or providing alternative land in lieu of the land of an extent of Ac.0.04½ guntas, to the petitioners is clearly illegal and unconstitutional. I have carefully considered the submissions of the learned counsel for the petitioners. As regards the contention that respondent No.1 Corporation (at the relevant time, it was a Municipal Council) acquired only an extent of Ac.1.03 guntas of land, the award ﬁled by the petitioners supports the said contention. But, this fact by itself is not enough to come to the conclusion that out of the remaining land of an extent of Ac.0.27 guntas, the Corporation is in possession of the land of an extent of Ac.0.04½ guntas belonging to the petitioners. The petitioners do not dispute the fact that the Corporation passed resolution No.10, dated 09.02.2000, by which, it’s earlier resolution, dated 14.02.1989 was cancelled. It is also not in dispute that letter, dated 20.05.1998, on which, heavy reliance is placed by the petitioners for claiming compensation, was solely based on the earlier resolution. The petitioners have not questioned the validity of resolution, dated 09.02.2000. Whether an extent of Ac.0.04½ guntas of land belonging to the petitioners is in possession of respondent No.1 Corporation or not is a disputed question of fact. If, as claimed by the petitioners, the said extent of land is in possession of the Corporation, undoubtedly, the petitioners are entitled to payment of compensation in accordance with the provisions of the Land Acquisition Act, 1894 (for short ‘the Act’). Except letter, dated 20.05.1998 of the then Commissioner, Warangal Municipal Corporation, which shows that the land of an extent of Ac.0.04½ guntas has been in possession of respondent No.1 Corporation, there is no independent evidence produced by the petitioners. While exercising jurisdiction under Article 226 of the Constitution of India, it is not possible for this Court to decide the disputed question of fact, namely, whether the land of the petitioners to the extent of Ac.0.04½ guntas over and above the land what was acquired by respondent No.1 in 1966 has been in possession of respondent No.1 or not. Such a question can be decided only by a Civil Court in a properly constituted civil suit. Therefore, while dismissing the writ petition, the petitioners are given liberty to approach the Civil Court for appropriate relief. In the event the Civil Court declares that the land of an extent of Ac.0.04½ guntas belonging to the petitioners is in possession of respondent No.1 Corporation, the respondents shall initiate appropriate proceedings under the Act and pay compensation to them. It is made clear that the petitioners can also seek appropriate damages for use and occupation of their land without acquiring the same under the provisions of the Act, in the civil suit that may be filed by them. C.V.NAGARJUNA REDDY, J 11th SEPTEMBER, 2008. kvni