HONOURABLE SRI JUSTICE A. GOPAL REDDY WRIT PETITION No:5454 OF 2000 Dated: 25.11.2010 Between: Mumtaz Hasan ..Petitioner And 1. The Secretary, Revenue Department, Government of A.P., Secretariat, Hyderabad and others. .. Respondents This Court made the following HONOURABLE SRI JUSTICE A. GOPAL REDDY WRIT PETITION No:5454 OF 2000 ORDER: This writ petition is filed seeking a direction to the respondents to allot and hand over possession of the land admeasuring Ac.2.08 gts., situated in Sy.No.166 of Shaikpet village, Hyderabad, or in the alternative, to pay compensation as per the market value as on date for the said land. The case of the petitioner in brief is as follows: The petitioner’s father Syed Alambardar agreed to purchase plot No.94 admeasuring Ac.4.36gts., of Shaikpet village from the Jubilee Hills Municipality of the Sarfekhas Mubarak A 1355 Fasli for a consideration of Rs.3675/- and the said offer was accepted and was approved by the ISt Talukdar Atrafbalda as per his letter addressed to Tahsildar West 11/76 dated 29th Shahreewar 1356 fasli. The father of the petitioner deposited the entire consideration and the plot was allotted to him. However, he noticed that there was a temple in the land and on account of sentimental request, his father moved the then Jubilee Hills municipality for allotting another plot in lieu of plot No.94 purchased by him. Meanwhile, the Jubilee Hills Municipality of Sarfekhas merged with Hyderabad Municipality as per Government notification No.44 of 1358 fasli published in Government Gazette No.36 Vol.80 dated 6th Amardad 1358 fasli. The Municipal Corporation as successor administration of the Jubilee Hills municipality as per the Standing Committee Resolution No.303, dated 13.7.1953 passed a resolution to hand over a plot admeasuring Ac.4.36 gts., situated at Jubilee Hills in lieu of plot No.94 and also issued a sale certificate No.10, dated 14.8.1953. Later, the father of the petitioner expired on 28.3.1966 leaving behind him the petitioner and his mother as legal heirs. Subsequent to allotment, the petitioner’s father also purchased an extent of Ac.1.24 gts., falling to the north of plot allotted by MCH under sale dated 9.6.1958. Thus, the total extent of land is Ac.5.06 gts. Subsequently, the petitioner’s father took permission for alienation of a portion of the land. While so, certain third parties claiming Ac.2.08 gts out of the land allotted to the father of the petitioner filed O.S.No.30 of 1970 on the file of the Additional Judge, City Civil Court, Hyderabad for declaration of their ownership and possession in respect of the land. In the said suit, the petitioner herein was shown as 2nd defendant and his mother as 1st defendant. The said suit was decreed on 30.11.1977. Further, an extent of Ac.0.14 gts., was also occupied by Banjara Hills Police Station outpost earlier and now Banjara Hills P.S. Thus, the petitioner was left only with Ac.2.24 gts and this fact was also confirmed by the Assistant Director, Survey and Land Records vide his letter No.G6/2777/76, dated 2.7.1977 clarifying that out of Ac.4.36 gts., allotted to the father of the petitioner, originally an extent of Ac.2.08 gts., fell in S.No.166 which was in possession of the petitioner and an extent of Ac.0.14 gts., was under the occupation of Police Station and an extent of Ac.1.34 gts., was falling in S.No.167 and 168. When all the facts were brought to the notice of the 2nd respondent, he gave a reply vide Memo No.F4/4606/89, dated 20.12.1995 advising the mother of the petitioner to get the decree from competent Court. Meanwhile, the mother of the petitioner expired on 15.1.1998 leaving the petitioner as sole surviving legal heir. Therefore, the petitioner made an application on 15.10.1999 to respondents 1 to 4 for grant of either compensation or for allotment of alternate land. In spite of the same, the respondents have not taken any steps. Hence the present writ petition has been filed. A counter-affidavit was filed by the 2nd respondent stating as follows: Shaikpet village of Hyderabad District was formerly a Sarfekhas village and after merger of Sarfekhas in Diwani in 1358 Fasli (1949 AD), the administration of the village was transferred and vested under the Control of the Government and all the records were made over to the Government at the time of merger. The initial survey of Shaikpet village was commenced on 1326 fasli (1917 AD) and the same was implemented in 1330 Fasli (1921 A.D.). The Sy.No.129 admeasuring an extent of Ac.3288.02 guntas was shown as Government land. It was locally known as “Kancha Tatti Khana”. In the year 1331 Fasli (1921 A.D.), a supplementary sethwar was issued creating Sy.Nos.129/1 to Sy.Nos.129/10 wherein Sy.No.129/1 admeasuring to Ac.3094.39 guntas was recorded as Government land and Sy.Nos.129/2 to 129/10 admeasuring Ac.193.03 guntas were shown as patta land. Another supplementary Sethwar was issued in 1346 fasli (1936AD) renumbering Sy.No.129/1 as Sy.No.403 and 404. Around 1350 fasli (1940A.D.) H.E.H., the Nizam planned development of area instead of giving land in piece meal, by making sub-division of Sy.No.403 and a new municipality was formed to commemorate the Silver Jubilee Celebration of the then Nizam. For that purpose, a layout of 169 plots in Sy.No.403 corresponding to Sy.No.129/1 was made and the same is known as Jubilee Hills Municipality Development Plan and the said Municipality used to sell these plots to the intending purchasers for quick development of the area. The said laid down procedure was that the intending purchaser should submit their application in prescribed form along with Rs.100/- as earnest money. After scrutiny, a notice was used to be issued to deposit the consideration of the said plot into the treasury of Sarfekas. On production of the challan further action was taken for allotment and delivery of possession etc. A notable feature of the procedure prescribed was that after deposit of the entire consideration and after allotment of the plot, the sum of Rs.100/- deposited as earnest money was refundable. After allotment and remittance of the market value in the Sarfekhas treasury, the municipality used to address a letter to the first Talukdar Atraf Balda District to issue a patta certificate and record it in the revenue and settlement records. After abolition of the Jubilee Hills Municipality as per Notification No.44 of 1358 fasli (1949 AD) the connected files were transferred to the M.C.H. After obtaining files from the Municipal Corporation of Hyderabad and scrutiny, a report was submitted to the Government by the Collector, Hyderabad giving the particulars of the plots in respect of which full payment of cost was made by the allottees. Accordingly, the Government in their Memo.No.3933/Q2/64-17 Revenue Department dated 6.12.1967 issued orders recognizing the title of 41 allottees, who had paid the full consideration for plots, with a direction to demarcate their plots and issue supplementary Sethwar and record them in the records. Subsequently, the Government in Memo No.4535-Q2/74-2 Revenue (Q) Department dated 4.6.1975 have recognized one more plot in favour of Smt. Zehra Alambardar, W/o late Alambardar (the original allottee) in lieu of plot No.94 measuring Ac.4.36 guntas in Shaikpet village. The Government in their Memo No.5167/Q2/76-1 Revenue Department dated 7.1.1977 directed the Collector, Hyderabad that the action be taken to enter the land i.e., Ac.2.28 gts., in Sy.No.166 of Shaikpet village in the name of Mrs. Zehra Alambardar W/o Syed Alambardar. The Government further directed to leave aside the land covered by O.S.No.30 of 1970 and Police station and without prejudice to any action that may be taken under Urban Land Ceiling Act. The Assistant Director, Survey and Land Records in his Lr.No.G6/2777/76, dated 19.4.1977 issued supplementary sethwar to an extent of Ac.2.28 gts in Sy.No.166 of Shaikpet village in her favour effecting necessary changes in revenue records. Smt. Zehra Alambardar filed a representation stating that the land falling in Sy.Nos.167 and 168 totalling to an extent of Ac.2.08 gts., be treated as her own land and requested to depute for measurement of land and issue supplementary sethwar for mutation in the revenue records. After examining the matter, a reply was given to Smt. Zehra Alambardar vide the office Lr.No.F4/4204/77 dated 16.8.1983 to approach the Court for execution of decree i.e., for handing over possession of the land through the Court. The Government/MCH has given land to an extent of Ac.4.36 gts., in lieu of the plot No.94 of erstwhile Jubilee Hills Municipality. As per the blue print supplied by the mother of the petitioner Zehra Alambardar the land had been surveyed by the Assistant Director, Land Records, Hyderabad. According to the said demarcation, an extent of Ac.2.28 gts in sy.No.166 is under her occupation, for which the supplementary sethwar was already issued in her favour. An extent of Ac.0.14 gts., was under occupation of the police station. Regarding the remaining extent Ac.1.34 gts., in which constructions had already taken place, the dispute was already decided in the City Civil Court long back. The petitioner has to get the said decree executed by the Court and his mother was already instructed in this regard long back. Instead of getting the decree executed, the petitioner is chasing the Government with a request to allot alternative land in lieu of disputed land. The petitioner has not clearly stated as to why he had not taken steps to get the decree executed by a Competent Court, which is a lawful remedy available with him. The petitioner wantonly prolonged the matter years together i.e., since 1983 to capriciously get some benefit by approaching the Government to allot the alternate land though there is a possibility of filing an Execution Petition in the Civil Court. 4th respondent also filed a separate counter in the same lines as that of the 2nd respondent. A reply affidavit has been filed by the petitioner reiterating the contentions advanced in his earlier affidavit. The fact that remains undisputed is that in the suit in O.S.No.30 of 1970 filed by some third parties claiming right over an extent of Ac.2.08 cents, the petitioner herein and his mother were arrayed as defendants 2 and 1 respectively and the same was decreed. Thereafter, the petitioner neither moved any application for compensation against the Government nor carried the matter in appeal for deprivation of the balance extent allotted to the petitioner’s father. The cause of action arises on decreeing the suit in November, 1977. But the petitioner had not chosen to challenge the decree passed against the petitioner and his mother. But he made representations to the authorities for allotting the extent of remaining land. Even though representation was rejected in the year 1995, advising the mother of the petitioner to approach the Civil Court for obtaining a decree through Court, the petitioner did not take up any steps. Instead of choosing to file the suit, the writ proceedings of this nature after a long time i.e., nearly after a period of 23 years from the date of decree passed in O.S.No.30 of 1970, cannot be sustainable. Further, this is not a case where this Court can decide the said dispute in a summary manner particularly when the claim of the petitioner is barred on merits. Accordingly, the writ petition is dismissed. No order as to costs. ________________________ Justice A. Gopal Reddy Date: 25th November, 2010 Nn. HONOURABLE SRI JUSTICE A. GOPAL REDDY WRIT PETITION No:5454 OF 2000 25.11.2010