THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.15141 of 2006 April 15, 2011 Between: Syed Mushtaq Hussain (died) per L.Rs And another ... Petitioners And The District Collector, Hyderabad District And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.15141 of 2006 ORDER: The writ petition is filed seeking a writ of Mandamus directing the respondents to pay compensation for 2480 Sq.Mts in S.No.187/2 situated at Old Kurnool Road, Bandlaguda, Chandrayanagutta, Hyderabad, as per the market value for acquiring the said land for road widening by the Roads & Buildings (R&B) department, or in the alternative to direct the provision of alternate site to the petitioners. During the pendency, the first petitioner died and his wife and children came on record as his legal representatives. The case of the petitioners is as follows. The petitioners are joint owners of Acs.2.37 guntas in S.No.187/2 situated at Old Kurnool Road, Bandlaguda, Chandrayanagutta, Hyderabad. The petition schedule land forms part of the same. With a view to widen the road to an extent of 150’, the R&B department fixed boundary stones including petition schedule land; 75’ on either side of the road. The petitioners made representations, in vain. They, therefore, filed W.P.No.16815 of 2005 seeking a direction to respondents to pay compensation. The same was disposed of by this Court on 01.8.2005, following the decision of the Division Bench in P.Lakshmana Rao v Executive Officer[1], suggesting negotiations with the petitioners. The petitioners statedly made representations requesting the respondents to settle the matter by negotiations. The second respondent requested the third respondent to depute a surveyor to R&B department for ascertaining facts. A survey was conducted in the presence of the fourth respondent, the petitioners and the Mandal Revenue Officer (MRO). The road was measured. It was found that the petition schedule land was coming under proposed road widening. The fourth respondent sent a report to the second respondent vide letter No.A/1120/2006, dated 13.4.2006 informing that the petitioners would be eligible for compensation. When compensation was not paid, the present writ petition is filed. The second respondent filed counter affidavit sworn on 02.8.2006. In a nutshell, it is the case that no part of the petition schedule land is affected and that the report of the fourth respondent dated 13.4.2006 is not correct. He further contends that no road was ever laid by R&B department consuming petitioners’ land and that the Old Kurnool Road had been in existence for over five decades and that in June, 2002 to protect the bituminous road edges, cement concrete was laid at 17/0 KM within the road boundaries. The fourth respondent filed separate counter affidavit in August, 2006 supporting the second respondent. On 09.3.2011, the fourth respondent filed additional counter affidavit raising the plea of maintainability in view of the title dispute involved in the case. It is stated that no road is laid in the petition schedule land and, therefore, the question of acquiring the land and paying compensation does not arise. Insofar as the actual ground position is concerned, it is beneficial to extract paragraph-3 from the additional counter affidavit. It is submitted that road from Indira Seva Sadan to Katedan which is part of the old Kurnool road is under the control of the R&B department. The old Kurnool road was a National Highway road which was formed long back, as per National Highway Standards the right of way of the NH.7 is 100 feet i.e., 50 feet on either side from the road centre. Ever as per the zonal development map filed by the petitioner shows that the width of the NH.7 road at petitioners land is 50 mtrs (164 feet). Now this road from Owaisi Hospital to Mailardevpally i.e., from KM 11/4 to 19/4 was made part of Inner Ring Road. Now also the NH.7 road width is 50 mtrs (164 feet). In the year 2008 the existing road was strengthened by widening the Bituminous Road within its road boundary. The land in Survey No.187/2 at Bandlaguda Village, Charminar Mandal, Hyderabad, is located on the right side of the said Inner Ring Road at KM 16/9 to 17/1 which is under the control of R&B Department. At this location, road width is 15 mtrs (50 feet) from the road centre on right side of the road. This respondent had neither laid any road nor widened by encroaching the petitioners land. Further there is a open land about 25 feet in between the shops and road edge. From this it is evident that the R&B Department had not taken any land from the petitioner for road widening. The petitioners filed reply affidavits to the counter affidavit of the second respondent filed in August, 2006 as well as to the additional counter affidavit of the fourth respondent. The petitioners admit that at the time of filing the writ petition the road was not widened but old road was only strengthened. There was a proposal to widen the road. After the survey, it was found that the petition schedule land would be affected. The third respondent accordingly submitted the report by letter dated 13.4.2006 supporting the petitioners’ version. It is further contended by the petitioners that after the survey the petition schedule land was marked for widening, but no such widening work was taken up till 2006. In 2008 the road was allegedly widened affecting the petitioners’ land. The Counsel for the petitioners submits that the petition schedule land was used for widening the road in 2008 and, therefore, non- payment of compensation for the same would be violative of Article 300A of the Constitution of India besides being arbitrary and illegal. He would contend that the old Kurnool road was laid as per the National Highway standards with a right of way of 100’ (50’ on either side of the road from the centre) and as per the Zonal Development map, as admitted by the respondents, the width of the NH.7 near the petitioners’ land is 50 Mtrs. The Government Pleader for R&B and the Government Pleader for Revenue (General) would submit that either in 2006 or in 2008 the petition schedule land was not affected at all by the road widening. They would contend that when the writ petition was filed in 2006, there was only a proposal to widen the road and even before steps could be initiated the writ petition was filed, which is premature. In 2008, the road was strengthened by widening bituminous road within its boundary and the petition schedule land was not affected. The question for consideration is whether there was road widening either in 2006 or in 2008, and whether the petition schedule land has been affected by such road widening. In the reply affidavit of the second petitioner verified on 10.2.2011, the petitioners admit that in 2006 the road was not widened but old road was strengthened by bituminous gravel and that there was only a proposal for widening the road. Was there any road widening in 2008? The fourth respondent, in the counter affidavit extracted hereinabove, averred that, “… now this road from Owaisi Hospital to Mailardevpally i.e., from KM 11/4 to 19/4 was made part of Inner Ring Road. Now also the NH.7 road width is 50 mtrs (164 feet). In the year 2008 the existing road was strengthened by widening the Bituminous Road within its road boundary. The land in Survey No.187/2 at Bandlaguda Village, … … is located on the right side of the said Inner Ring Road at KM 16/9 to 17/1 which is under the control of R&B Department. At this location, road width is 15 mtrs (50 feet) from the road centre on right side of the road. This respondent had neither laid any road nor widened by encroaching the petitioners land. ...”. The petitioners dispute the statement of the fourth respondent. On one hand the Revenue and R&B department officials deny the allegation that the petition schedule land has been acquired for road widening and on the other hand the petitioners contend that after conversion of the road, the same was made to a width of 150’ and in the process the petition schedule land was taken. As contended by the Government Pleader, it is a question of fact. This cannot be decided in a writ petition. When there was no road widening work taken up in 2008 and admittedly no such widening in 2006, the remedy is not a writ petition. The petitioners have to approach the Civil Court, establish the factum of their land being occupied for road widening if any, and stake their claim for compensation. On the mere report of the MRO, at the stage of proposal, to the effect that petition schedule land is likely to be within proposed widening portion, the petitioners cannot be granted any relief. This Court has perused the counter affidavits of respondents 2 and 4 and the additional counter affidavit of fourth respondent very carefully. There is no such admission as pointed out by the learned Counsel for the petitioners to the effect that their land has been utilized for widening the road in 2008. This Court prima facie is convinced that there was no widening work either in 2006 or in 2008 and the writ petition is wholly misconceived. In the result, for the above reasons, the writ petition fails and is, accordingly, dismissed. No costs. ________________ (V.V.S. RAO, J) April , 2011 YS [1] 2000(5) ALT 246 (DB)