THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION Nos.28730 of 2008 and 24521 of 2009 Dated:03.02.2010 Between: Smt.Shareefunnissa, W/o.Late Mohammed Sabeb, And others. …Petitioners and Mohd.Ghouse, S/o.Late Khasim Saheb, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION Nos.28730 of 2008 and 24521 of 2009 COMMON ORDER: (per Hon’ble Sri Justice V.V.S.Rao) These two writ petitions are against the common order dated 03.12.2008 in four interlocutory applications passed by the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (the Act, for brevity), Hyderabad. Therefore, they are being dealt with by this common order. For the sake of convenience, we refer the parties as they are arrayed in W.P.No.24521 of 2009. The petitioner instituted a land grabbing case under Section 8(1) of the Act registered as L.G.C(SR).No.3384 of 2007. He alleged that he is owner of the property admeasuring Ac.1.10 guntas in survey Nos.139 and 140 corresponding to T.S.Nos.3, 4, 5 and 7 of Ward No.6, Block-N of Panchamulaguda, Yellareddyguda, Hyderabad. Tracing his title he alleged that the property was initially assigned for consideration by Aval Taluqdar of Atraf Balda on 18th Aban 1350 Fasli to Mohd.Sadiq Ustad, that the said assignee was a bachelor who was taken care of by the petitioner and that the assignee executed a gift deed dated 09.03.1971 in his favour. After allegedly becoming absolute owner and pattedar, the petitioner alleged that he paid non- agricultural assessment tax to the Government and got his name mutated in the pahanies. He alleged that respondent Nos.1 to 11 executed a registered Development Agreement-cum-Power of Attorney on 04.11.2003 in favour of respondent Nos.12 and 13 for development and that they have no manner of right to deal with the property. Along with the LGC the petitioner filed I.A.No.941 of 2008 seeking ad interim injunction restraining the respondents from alienating the application schedule property. He also filed I.A.No.942 of 2008 seeking ad interim injunction restraining respondents from making further constructions over the application schedule property. The Special Court ordered status quo on 02.09.2008 in both the matters and appointed an Advocate Commissioner to find out whether construction activity is going on on the application schedule property. The said Commissioner visited the petition schedule property on 24.09.2008 and filed a report giving details of construction activity in Block-I and Block-II. At or about the same time respondent Nos.1 to 13 filed I.A.Nos.1013 and 1014 of 2008 praying the Special Court to vacate the orders of status quo. On consideration of the applications while ordering status quo in I.A.No.941 of 2008, the Special Court dismissed I.A.No.942 of 2008. The effect of the said order is that the Special Court allowed the constructions to go on, but virtually restrained respondents from alienating the application schedule property. Aggrieved by the order dismissing I.A.No.942 of 2008 the petitioner filed W.P.No.24521 of 2009 and aggrieved by the order of status quo in I.A.No.941 of 2008 respondents filed W.P.No.28730 of 2008. This Court admitted W.P.No.28730 of 2008 on 30.12.2008. On 01.06.2009 this Court suspended the order in I.A.No.941 of 2008. Subsequently, the petitioner filed W.P.No.24521 of 2009 and this Court granted interim suspension as prayed for. The petitioner then moved W.V.M.P.No.3436 of 2009 for vacating the interim order passed in W.P.No.28730 of 2008. At that stage with the consent of the rival Counsel we have heard the matters finally as the submissions for the sake of interlocutory applications and main writ petitions are the same. The learned Counsel for the petitioner emphasizes the gift deed executed by Mohd.Sadiq Ustad in his favour in 1971 and pending litigation in support of the plea of prima facie case and balance of convenience. The learned Counsel for the respondents relies on the No Objection Certificate issued by the District Collector, Hyderabad, the registered Development Agreement, permission granted by Municipal Corporation of Hyderabad and the registered sale by one Dadi Sayi Reddy in favour of Mohammed Saheb, the predecessor of respondent Nos.1 to 11. In support of balance of convenience to continue the construction as well as the liberty to alienate the constructed flats, he contends that even according to the Commissioner who visited the site, the construction is in advanced stage and therefore, no purpose would be served by keeping the flats vacant after undertaking construction at a huge costs. The only point that requires consideration is whether the respondents should be allowed to complete the construction and alienate the constructed units to third parties. The learned Special Court appointed an Advocate Commissioner who submitted a report on 24.09.2008. This also weighed considerably with the Special Court dismissing I.A.No.942 of 2008, which was filed to restrain the respondents from proceeding with further construction. A perusal of the Commissioner’s report would show that in Block-I and Block-II the construction is at a very advanced stage to the extent of completion of the skeleton structure with doorframes, and only internal work is to be completed. Therefore, if the construction is stopped at this stage it would certainly prejudice the respondents, who by showing the three documents referred to hereinabove like No Objection Certificate by District Collector, Development Agreement, and Permission by Municipal Corporation of Hyderabad, have demonstrated their prima facie title to the application schedule property. A perusal of the Development Agreement would show that respondent Nos.1 to 11 forming first part executed the Development Agreement-cum-General Power of Attorney in favour of respondent No.12 forming second part enabling the latter to develop the application schedule property by constructing a residential complex consisting of cellar for parking and ground + four upper floors. Under the agreement the first party shall be entitled to 39% of the construction area and 61% will be retained by the developer. In addition to this, the developer is required to pay an amount of Rs.45,00,000/- to the owners as refundable security deposit and the project is to be completed within a period of three and half years, failing which the developer has to pay penalty of Rs.10,000/- per month. Any dispute is referable to arbitration as per Clause 22 of the Development Agreement. All these indicate that the success of the Development Agreement depends on the sale of flats falling to developer’s share. If they are permitted to complete the construction, which necessarily involves abnormal costs, and restrained not to alienate the properties, it would be certainly a bad business proposition. The Court while passing an order of restraint from alienating property cannot lose sight of these matters. In case ultimately the petitioner succeeds, needless to mention that respondents would always suffer the decree of Court subject to their right of appeal. Merely because the third party’s interest might multiply other proceedings, the efficacy of a construction project cannot be curtailed indirectly which the Court willingly did not want to curtail directly by injuncting further construction. However, to safeguard the interest of third parties who are willing to purchase the residential flats under construction undertaken by respondent No.12, we deem it proper to observe and direct that respondent No.12 shall display considerably large and big notice board to the effect that the land is in litigation before the Special Court in L.G.C(SR).No.3383 of 2007. It shall also be their obligation to inform every intending purchaser about this and include indemnity clause in the conveyance deed. This would safeguard the interest of third parties. In the result, for the above reasons, W.P.No.28730 of 2008 is allowed, and consequently, I.A.No.941 of 2008 is dismissed. Insofar as W.P.No.24521 of 2009 is concerned, we do not find any reason to interfere with the order of the learned Special Court dismissing I.A.No.942 of 2008, and therefore, W.P.No.24521 of 2009 is dismissed. We direct the parties to bear their respective costs. _______________ (V.V.S.RAO, J) ________________ (B.N.RAO NALLA, J) 03.02.2010 vs