IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY EIGHTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION NO : 20252 of 2002 Between: 1 Shaik Abdul Khader S/o Abdul Rehman @ M.A. Raroof R/o H.No. 16-6-41, Chaderghat, Hyderabad. 2 Shaik Abdul Hyder S/o Abdul Rehman @ M.A. Raroof R/o H.No. 16-6-41, Chaderghat, Hyderabad. ..... PETITIONER(S) AND 1 The Special Deputy Collector, Land Acquisition (General) Nampally, Besides Commissioner, Land Revenue, Opp: Annapurna Hotel, Abids, Hyderabad. 2 The South Central Railway, Rep. by its General Manager, Secunderabad. 3 The Senior Divisional Engineer (West), South Central Railway, Secunderabad Division, Secunderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the actions of the respondents in dispossessing the petitioners from their patta land bearing S.No. 81, admeasuring Ac. 1-05 Gts., situated at Hafeezpet Village, R.R. District without notice without initiating land Acquisition proceedings U/Sec. 4(1) of the Act and without payment of compensation is arbitrary, illegal, without jurisdiction adn consequently direct teh respondents to pay compensation in respect of the acquired land by invoking the provisions of L.A.Act and also damages for the infringement of constitutional rights of the petitioner in depriving their property without notice and to grant such other relief or reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.M.SUDHIR KUMAR Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following : THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.20252 of 2002 ORDER: Originally writ petition was filed seeking a Mandamus declaring the action of the respondents in dispossessing the petitioners from their patta land bearing S.No.81 admeasuring Ac.1-05 guntas situated at Hafeezpet village, Ranga Reddy district without notice, without initiating proceedings under Section 4(1) of the Land Acquisition Act and without payment of compensation as arbitrary, illegal and without jurisdiction and consequently to direct the respondents to pay compensation in respect of acquired land by invoking provisions of Land Acquisition Act and damages for infringement of constitutional rights of the petitioners in depriving their property without following due process of law. However, the said prayer was amended as per the Court Order dated 18.11.2008 in W.P.M.P.No.32869 of 2008 and after amendment, the prayer reads as under: “Writ of Mandamus declaring the action of the respondents in dispossessing the petitioners from their patta land bearing S.No.81 admeasuring Ac.1-05 guntas situated at Hafeezpet village, Ranga Reddy district without notice, without initiating land proceedings under Section 4(1) of the Land Acquisition Act and without payment of compensation as arbitrary, illegal and without jurisdiction and consequentially to direct the respondents to deliver back the land admeasuring Ac.1-05 guntas situated in Sy.No.81, Hafeezpet village, Ranga Reddy district to the petitioners forthwith and to pay damages.” It is the case of the petitioners that their paternal grand mother Smt.Kadiri Bee was the absolute owner, cultivator and possessor of land bearing Survey No.81, admeasuring Ac.1-05 guntas situated at Hafeezpet village, Ranga Reddy district and after the death of Smt.Kadiri Bee in the year 1976, petitioners inherited the above land along with other properties as successors and became absolute owners and possessors of the land and they have constructed a room and fenced the entire land. Since the date of inheritance, petitioners are enjoying the same without any interference from any corner. The names of the petitioners were also mutated in the revenue records as pattedars and possessors of the above land and their names have been reflected in the pahanies as pattedars. While that being so, when the labour engaged by the petitioners tried to clear the bushes in the vacant land surrounding the room, the railway authorities interfered and objected for cutting the bushes and development of the land claiming that it is their land. Surprised by the said action, petitioners approached the Railway authorities along with ownership documents pertaining to the subject land and requested to desist from interference. In spite of repeated requests made by the petitioners, the Railway authorities never stopped from interference and did not allow the petitioners and their labour from cutting the bushes in the land and in the meanwhile, the Railway authorities demolished the room and structures existing in the subject land. Having vexed with the interference, petitioners got issued a legal notice and thereafter filed suit bearing O.S.No.973 of 2001 on the file of the Principal Junior Civil Judge, Ranga Reddy district, West and South seeking relief of permanent injunction restraining the Railway authorities from interfering with the peaceful possession and enjoyment of petitioners land. Along with the suit, petitioners also filed I.A.No.2734 of 2001 seeking temporary injunction. In the said Interlocutory Application, Railway authorities filed counter taking a plea that the subject land was acquired by the Railways in pursuance of proceedings dated 15.11.1973 and possession of the land was taken from petitioners’ grand mother Smt.Kadiri Bee. In view of the said statement, the said Interlocutory Application was dismissed with an observation that the subject property was already long back acquired and the Railway authorities are continued to be in possession of the property and if the petitioners are aggrieved by the procedure adopted by the Railway authorities in acquiring the subject property, in a suit for injunction such a controversy cannot be decided. According to the petitioners, all the pahanies and revenue records disclose their names as owners and pattedars of the subject land and the respondents without issuing any notice either to petitioners or to their grandmother Smt.Kadiri Bee, dispossessed them from the land illegally. According to the petitioners, if any land belonging to private person is needed or likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette and in two daily newspapers of which atleast one should be in regional language and the said publication is crucial and mandatory. According to the petitioners, in this case, no such notification was issued and they were dispossessed from the subject land without any notice whatsoever and without passing any award as to payment of compensation. According to them, the right of property is guaranteed under Article 300-A of the Constitution of India and that statutory right cannot be taken away except in accordance with law i.e. by taking recourse to the statutory provisions of acquisition by the State by invoking the Doctrine of Eminent Domain or by purchasing the land. The action of the respondents is nothing but unlawful, arbitrary, illegal and violative of principles of natural justice. Respondents filed detailed counter affidavit, additional counter affidavit and second additional counter affidavit denying the allegations made by the petitioners. The pith and substance of counters filed by the respondents is that as early as in the year 1973, Smt.Kadiri Bee gave consent for acquisition of the subject land for the benefit of Railways. She in fact, executed a letter dated 15.11.1973 in this regard. The Railways have taken possession in the year 1973 and since then, it has been in peaceful possession of the property. Thus, the Railways had acquired prescriptive title by adverse possession. The petitioners have no right whatsoever over the subject land and they have to prove their right before the competent Court of law. It is doubtful as to whether petitioners are the grand children of Smt.Kadiri Bee. Though the land was taken over in the year 1973, suit was filed in the year 2001 and when the Interlocutory Application for injunction was dismissed, they have chosen to file the present writ petition. Originally, the writ petition was filed with a prayer to pay compensation and damages, whereas in the amendment they sought for recovery of possession. Further, one Md.Mian has already filed suit in O.S.No.299 of 2002 seeking declaration of title and the same is pending between the parties. Therefore, it cannot be said that the petitioners are titleholders. Further, the injunction granted in their favour has already been dismissed. Therefore, the question of invoking provisions of Land Acquisition Act for acquiring land and paying compensation to the petitioners does not arise. The learned counsel for respondents contended that in view of finding by the Civil Court in I.A.No.2734 of 2001 in O.S.No.973 of 2001 filed by petitioners against the Railways that Railways have been in possession and enjoyment of the suit land by virtue of the consent letter of Smt.Kadiri Bee dated 15.11.1973 and that the petitioners are never in possession of the said land and dismissing their petition for temporary injunction, which has become final, the alienations of petitioners in respect of the suit land to Mohd. Mian under an alleged agreement of sale and also to M/s Shree Comfortables Pvt. Ltd., under registered sale deed dated 22.9.2007 are to be held as sham and fake documents. He further contended that petitioners filed I.A.No.6109 of 2006 in O.S.No.973 of 2001 seeking amendment of the prayer in the plaint that they are the absolute owners and possessors of the suit land and in the present writ petition, they sought amendment of the prayer to direct the Railways to deliver possession of the said land to them. In view of the said inconsistent stands taken by the petitioners, this writ petition is not maintainable in law. The petitioners cannot split their reliefs in respect of the same cause of action and claim some reliefs in O.S.No.973 of 2001 and some reliefs in the writ petition simultaneously in view of Order 2 Rule 2 of Civil Procedure Code. He further contended that in view of the consent letter dated 15.11.1973 executed by Smt.Kadiri Bee, Railways had been inducted into possession of the subject land they are continued to be in possession till now. Neither Kadiri Bee nor the petitioners had taken any legal proceedings either for payment of compensation or damages or for recovery of possession of the said land within the statutory period of limitation. As such, the claim of petitioners is barred by limitation from either claiming compensation or damages or for recovery of possession of the subject land. The learned counsel by placing reliance on the judgments in BALWANT NARAYAN BHAGDE v. M.D.BHAGWAT & OTHERS[1], TAMILNADU HOUSING BOARD v. A.VISWAM (DEAD) BY L.Rs[2], THE REVENUE DIVISIONAL OFFICER, GUNTUR v. VASIREDDY RAMA BHANU BHUPAL AND OTHERS[3], LT. GOVERNOR OF HIMACHAL PRADESH AND ANOTHER v. AVINASH SHARMA[4] AND BIRGUBAN SINGH AND OTHERS v. LAND ACQUISITIONAL OFFICER/ REVENUE DIVISIONAL OFFICER AND ANOTHER[5], and submitted that in view of joint survey and demarcation of the subject land by the revenue authorities and the Railways on 27.4.1974 under the provisions of Land Acquisition Act, Railway had been vested with possession of land with effect from 27.4.1974. He further contended that neither Kadiri Bee nor the petitioners filed any declaration under the provisions of Urban Land Ceiling Act, 1976 in response to the notice of respondent dated 7.12.1976. Only in the year 1995, petitioners filed declaration before the competent authority under Urban Land Ceiling Act. The competent authority passed final orders in the year 1998. The learned counsel further contended that in view of decision in BIRGUBAN SINGH’s case (referred supra), unless the proceedings under ULC Act are completed, the Land Acquisition Officer cannot complete the procedure under Land Acquisition Act for passing the award. The learned counsel by placing reliance on the judgments in NATIONAL BOARD OF EXAMINATIONS v. G.ANAND RAMAMURTHY AND OTHERS[6], ALLAHABAD DISTRICT COOPERATIVE BANK LIMITED, ALLAHABAD v. VIDHYA VARIDH MISHRA[7] and submitted that the Supreme Court held that a relief not claimed in the writ petition cannot be granted by the High Court under Article 226 of the Constitution of India. Absolutely there are no merits in the writ petition and the same is liable to be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record. The following questions arise for consideration in this writ petition: 1. Whether the Railways have acquired title by adverse possession? 2. Whether the Railways are liable to approach the Land Acquisition authorities and seek acquisition of land and pay compensation to the petitioners? 3. Whether there is any dispute as to title between third parties and petitioners vis-à-vis Railways? 4. Whether the petitioners are entitled for recovery of possession? It is the case of the petitioners that they are the grand children of one Smt.Kadiri Bee and their names have been mutated in the revenue records in the year 1982 and since then their names are being carried out as pattedars and possessors. Petitioners seem to have come to know about the acquisition by Railways only when the Railway authorities obstructed their men in developing the land, therefore they filed a suit against the Railways. The fact as to mutation of petitioners names in the revenue records as pattedars and possessors in the year 1982 is not in dispute. In this background, it is necessary to examine as to whether the Railways can plead that they acquired title by adverse possession and the petitioners have lost their title over the subject land. In this regard, it is necessary to notice the documents filed by the respondents in the present writ petition, the index of which, reads as under: CHRONOLOGY OF EVENTS S.No. Description of the Document Date of paper 1. Letter of Divl. Engineer/S.C. Railway/Con. Secunderabad No.SC.WC.447/LA/11 addressed to the Collector, Land Acquisition, Enquiries, Hyderabad district, Hyderabad. 1.6.1973 2. Letter of Divl. Engineer/Con. Secunderabad No.SC.WC.447/LA/11 addressed to the Spl. Dy. Collector/Land Acquisition/General/ Himayathnagar/ Hyderabad. 1.6.1973 3. Mr.Sathaiah, Surveyor’s report and plan of demarcation of boundaries after measurement of land in File No.G/4570/LA/73 of 17.6.1974. 2.1.1975 4. Attestation of Inspection of Survey and Land Records on the sketch and statement of sub- Division in the village of Hafeezpet. 2.1.1975 5. Consent statement of Khadri Bee D/o Hussainsab, handing over possession of Ac.0-39 guntas of land in Sy.No.81, Hafeezpet village to the Railways attested by ADEN/Con./Secunderabad, IOW/Con/Secunderabad and Patwari of Hafeezpet and two witnesses. 15.11.1973 6. Letter of Divl. Engineer/Con./Secunderabad No.SC.WC.447/LA/11 addressed to the Spl. Dy. Collector/LA/Genl/Hyderabad. 16.11.1973 7. Letter of Divl. Engineer/Con./Secunderabad to Dy. Spl. Collector/LA/Genl./Hyderabad district requesting to arrange for publication of DN and DD proposals invoking urgency clause. 15.5.1974 8. Letter from Chief Engineer/S.C. Railway/Con/ Secunderabad to Dy.Collector, Land Acquisition/ Genl./Hyderabad requesting for publication of DN and DD proposals. 3.6.1974 9. Letter from Chief Engineer/S.C. Railway/Con/ Secunderabad to Dy. Collector, Land Acquisition/ Genl/Hyderabad requesting for publication of DN and DD proposals. 11.7.1974 10. Letter from Chief Engineer/Con/ Secunderabad to Dy. Collector, Land Acquisition/ Genl/Hyderabad requesting for publication of DN and DD proposals. 20.6.1974 11. Letter from Chief Engineer/Con/ Secunderabad to Dy. Collector, Land Acquisition/ Genl/Hyderabad requesting for publication of DN and DD proposals. 21.6.1974 12. Letter of Divl. Engineer/Con./Secunderabad to Spl.Dy.Collector/LA/Genl./Hyderabad district requesting to arrange for publication of DN and DD proposals invoking urgency clause. 7.9.1974 13. Letter of Divl. Engineer/Con./Secunderabad to Spl.Dy.Collector/LA/Genl./Hyderabad district requesting to arrange for publication of DN and DD proposals invoking urgency clause. 6.8.1975 14. Letter of Asst. Divl. Engineer/Con./Secunderabad to Spl.Dy.Collector/LA/Genl./Hyderabad district requesting to arrange for publication of DN and DD proposals invoking urgency clause. 12.4.1976 15. Letter of Divl. Engineer/Con./Secunderabad to Spl.Dy.Collector/LA/Genl./Hyderabad sending copies of plan and schedule to suggest a suitable date for joint measurement with a copy to the Collector/Hyderabad. 6.3.1979 16. Letter of Divl. Engineer/Con./Secunderabad to Spl.Dy. Collector/LA/Genl./Hyderabad district requesting to fix up a date to arrange joint measurement. 11.1.1980 17. Notice of Tahsildar, Serilingampalli mandal to the Chief Engineer/S.C. Rly./Secunderabad to file objection to the application of M/s Sree Comfortables Pvt. Ltd., for grant of mutation of land purchased by them in Sy.No.81 measuring Ac.1-05 guntas of Hafeezpet village. 20.5.2008 18. Letter of Divl. Railway Manager/S.C. Railway Secunderabad to the Spl. Dy. Collector/LA/Genl/ Hyderabad district for publication of DN and DD in respect of land in Sy.No.81. 18.6.2008 19. Notice of Tahsildar, Serilingampalli mandal to Divisional Railway Manager/S.C. Railway/ Secunderabad to file objections for grant of mutation of land in favour of M/s Sree Comfortables Pvt. Ltd. 26.7.2008 20. Written statement of the Railways to the notice of Tahsildar, Serilingampalli mandal. 21. Letter (reply) of the Spl. Dy. Collector/LA/ Genl/Hyderabad to Divisional Railway Manager/ S.C. Railway/Secunderabad requesting to provide record for necessary action as the record concerning is not available. 5.8.2008 22. Letter of Sr.Divl. Engineer/West/S.C. Rly/ Secunderabad to Spl.Dy. Collector/LA/Genl/ Hyderabad district forwarding requisition and Correspondence for writ petition reference for passing award. 19.8.2008 23. Letter of Spl. Dy. Collector/LA/Genl./Hyderabad district to the Sr Divl. Engineer/West/S.C. Rly/ Secunderabad directing advising to approach the Spl.Dy.Collector/LA/Industries/R.R. district for seeking acquisition of said land of 1.5 guntas in Sy.No.81, Hafeezpet village as he has no Jurisdiction. 4.9.2008 24. Letter of Spl. Dy. Collector/LA/Industries/ R.R.district, Hyderabad to Divisional Rly. Manager Works/Secunderabad requesting him to send Revised acquisition proposals for acquisition of land Ac.1-05 guntas in Sy.No.81, Hafeezpet village, Ranga Reddy district. 6.12.2008 25. Compromise decree between Md.Mian and writ petitioners in O.S.No.297/1987. 19.11.1987 26. Plaint copy of O.S.No.299/02. 27. Sale Deed 22.9.2007 From the above correspondence, it would clearly indicate that as many as 12 times, the Chief Engineer and Divisional Engineer, South Central Railway, Secunderabad requested the Special Deputy Collector-cum-Land Acquisition Officer for initiation of land acquisition proceedings under Section 4(1) of the Act against the subject property and to finalise the same. The last letter written by the Senior Divisional Engineer is at Item No.21 and the Special Deputy Collector wrote a letter to the respondent authorities advising to approach the Special Deputy Collector, Land Acquisition, Industries, R.R. district seeking acquisition of land and the final letter received by the respondents from the Special Deputy Collector is on 6.12.2008. Under these circumstances, the plea of the Railway that they had accrued title by adverse possession and the petitioners have no right, title over the property cannot be countenanced. Thus, from the above Table, it is clear that the Railways have been requesting the Special Deputy Collector, Land Acquisition to initiate Land Acquisition proceedings in respect of the subject land althrough for the last more than 35 years. Till date, no such proceedings have been initiated by the Land Acquisition Officer for want of certain information to be furnished by the Railway authorities. The compromise decree between Md.Mian and petitioners herein in O.S.No.297 of 1987 and pendency of suit in O.S.No.299 of 2002 and the sale deed purported to have been executed by the petitioners in favour of M/s Sree Comfortables Pvt. Ltd., have nothing to do with the initiation of proceedings under Land Acquisition Act. Whether the petitioners are entitled for compensation and whether there is any dispute with third parties will not come in the way of Railways in seeking to notify the land under Section 4(1) of the Land Acquisition Act by the Special Deputy Collector, Land Acquisition. If there is any dispute between petitioners and third parties as to title, it is always open for the Land Acquisition Officer to refer the matter under Section 30 of the Land Acquisition Act to the competent Civil Court for its decision. But that itself does not mean that the Railways have accrued title by way of adverse possession and no land acquisition proceedings need be initiated for acquisition of land. Before parting, the learned counsel for respondents strenuously contended that the very writ petition is not maintainable in this shape since there was amendment to the prayer as noticed above and that the petitioners have woke up after 20 years seems to be unreasonable in view of documents and correspondence referred above. Though the learned counsel has referred to many judgments, I am of the considered opinion that those judgments have no relevance to the facts of the present case, therefore, they need not be delved in detail. When it is the contention of the Railways that Smt.Kadiri Bee has given consent letter in the year 1973 and the names of the petitioners are mutated in the revenue records as early as in the year 1982, nothing comes in the way of Railways in seeking to notify the land under Section 4(1) of the Land Acquisition Act. Thus, it cannot be said that the Railways have accrued right by way of adverse possession and in fact they are liable to seek initiation of land acquisition proceedings, as per law. However, it cannot be said that the petitioners are entitled for recovery of possession since the Railways have been enjoying the property for quite longtime and it is necessitated for their requirement and the Railways are intending to acquire the land by approaching the Special Deputy Collector, Land Acquisition. In case, no land acquisition proceedings are initiated, the petitioners may be entitled for recovery of possession of the subject property since they have prima facie title over the property in view of entries available in the revenue records. For all the aforesaid reasons, the respondents are directed to seek initiation of proceedings under Land Acquisition Act in respect of land in Survey No..81 admeasuring Ac.1-05 guntas situated at Hafeezpet village, Ranga Reddy district under Section 4(1) of the Land Acquisition Act from the Special Deputy Collector, Land Acquisition within a period of three months from the date of receipt of this order. If for any reason, the land acquisition proceedings are not initiated, the respondents shall handover possession of the subject property to the petitioners. The writ petition is accordingly disposed of. No order as to costs. _____________ C.V.RAMULU, J Date: 28.7.2009 DA THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.20252 of 2002 28.7.2009 [1] AIR 1975 SC 1767 [2] 1996(2) SUPREME 385 [3] AIR 1970 AP 262 (FB) [4] AIR 1970 SC 1576 [5] 1993 (2) ALT 173 [6] 2006(5) SCC 515 [7] 2004(6) SCC 482