IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTEENTH DAY OF OCTOBER, TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 19057 OF 2002 Between: Bonam Venkataramana died per LRs Bonam Kantha Mani and four others … Petitioners And The Commissioner … Respondent Counsel for the petitioner : Sri T.Rajendra Prasad Counsel for the respondent : None appeared The Court made the following O R D E R: This writ petition is filed for a Writ of Mandamus to direct the respondent to determine the compensation payable to the petitioner in respect of his site admeasuring 410 square feet bearing Municipal Door No.30-1-7 of Janda Panja Road, Rajahmundry, East Godavari District by holding an enquiry in pursuance of order dated 12.07.2001 in W.P.No.14117 of 2001. The petitioner claimed that he is the owner of building bearing Municipal Door No.30-1-7 situated in Janda Panja Road, Rajahmundry, East Godavari District. He averred that during August, 1997, the respondent wanted to demolish several buildings including the building owned by the petitioner referred to above for the purpose of road widening and that the petitioner and others filed W.P.No.18778 of 1999 in this Court, in which an order of status quo was granted. It is further averred that during the pendency of the said writ petition, the petitioner himself pulled down the front portion of his building in the interests of development of Rajahmundry town and handed over 410 square feet to the respondent for the said purpose. It is further averred that as the value of the property is very high, he approached the respondent for payment of compensation and got a notice issued in this regard on 16.04.2001. As no action was taken thereon, the petitioner filed W.P.No.14117 of 2001 in this Court, which was disposed of, by order dated 12.07.2001, with the direction to the respondent to hold an enquiry and if it is found that compensation is payable, the same shall be paid in accordance with law. Writ Appeal No.1897 of 2001 filed against the said order by the respondent was dismissed by a Division Bench on 18.12.2001. The petitioner gave legal notice dated 28.12.2001 to the respondent to take steps for implementation of order dated 12.07.2001 and as the said notice did not yield positive result, the petitioner filed Contempt Case No.223 of 2002. The said Contempt Case was closed on the respondent tendering unconditional apology for the delay in completing the enquiry. As compensation was not paid, the petitioner filed the present writ petition with the above mentioned relief. A counter-affidavit has been filed by the Commissioner of the respondent-Corporation, wherein it has been, inter alia, stated that the petitioner obtained permission for roof conversion vide permit dated 21.04.1992 and made unauthorised construction on the first floor apart from violating mandatory open space coverage and F.S.I. It is further stated that the petitioner took the lead and convinced all the other 17 building owners, who were parties to the earlier writ petition to demolish the buildings on their own, at their own cost, and most of them also executed letters stating that they have no objection for demolition and they will not claim any compensation for damages for the land and structures. It is specifically averred that the petitioner is also one among those persons, who agreed to part with the land and cost of the building demolished for road widening without claiming compensation. It is also stated that while obtaining permission for construction of building in the year 1992, the petitioner agreed to surrender the land required for road widening free of cost to the Municipal Corporation. The respondent, therefore, maintained that the petitioner is not entitled to receive compensation. In the reply-affidavit filed by the petitioner, he has maintained that he has got sanction of his application for conversion of asbestos cement sheet roof into RCC slab over the rear side rooms on the northern side of the main building and whereas Janda Panja Road is on the southern side of the building and that conversion has not been done so far due to lack of funds. The petitioner stated that the alleged undertaking said to have been executed on the non-judicial stamp paper was a fake and forged document and that the respondent might have filled up the gaps on the non-judicial stamp blank paper subsequently to suit their convenience. At the hearing, Sri T.Rajendra Prasad, learned counsel for the petitioner, submitted that the stand taken by the respondent that the petitioner gave undertaking to give away the land free of cost for road widening is a pure afterthought. He further submitted that the said undertaking was not actually executed by the petitioner. The learned counsel also contended that as the order in W.P.No.14117 of 2001 has become final, it is not permissible for the respondent to deny compensation on the ground of the alleged undertaking. The learned counsel has drawn my attention to the reply issued by the Commissioner of the respondent-Corporation, wherein the latter maintained that the petitioner had himself demolished the building on his own and that as the Corporation does not require the site for the purpose of road widening, the same is not utilised. During one of the hearings, when the learned counsel for the petitioner has disputed the above mentioned stand taken by the respondent that the petitioner’s land was not utilised for road widening, this Court directed the respondent to produce the record apart from being present in person. Accordingly, the Commissioner was present with the file and he stated that during the tenure of his predecessor-in- office, a part of the land belonging to the petitioner was utilised for road widening. I have carefully perused the record produced by the Commissioner and I find from the record, a purported written undertaking given by the petitioner on stamped paper agreeing to give away his land required for widening of the road free of cost. The question that requires to be considered in this writ petition is whether the petitioner is entitled to payment of compensation for the part of the land, which was admittedly utilised by the respondent for road widening. In W.P.No.14117 of 2001, this Court directed the respondent-Corporation to make an appropriate enquiry into the matter and that upon such enquiry, if it is found that the land of the petitioner was utilised for the purpose of road widening, the Corporation shall determine the amount of compensation liable to be paid to the petitioner in accordance with law and that if it is found that the petitioner is entitled for compensation, the same shall be paid within eight (8) weeks from the date of completion of the proceedings. From a perusal of the order, it is clear that the writ petition was disposed of at the admission stage. Therefore, there was no opportunity for the respondent-Corporation to raise the plea that the petitioner has executed the purported undertaking to give the land free of cost. Therefore, in my considered view, the respondent-Corporation cannot be put to the disadvantage of being disallowed to raise such a plea in the present writ petition. As regards the stand taken in the above mentioned reply notice issued by the respondent, as this Court found inconsistency as regards the factum of utilisation of the land, clarification was elicited from the Commissioner, who admitted that a part of the land was utilised by the Corporation for the purpose of road widening. The petitioner, in his reply-affidavit, on the one hand, stated that the alleged undertaking on the non-judicial stamp paper is a fake and forged document and on the other hand, he maintained that the respondent might have filled up the gaps on the non-judicial stamp blank paper subsequently to suit their convenience. If the alleged undertaking is a fake and forged document, the question of filling up the document subsequently would not arise. However, I am not inclined to go into this disputed question of fact in the present proceedings instituted under Article 226 of the Constitution of India. The entitlement of the petitioner to receive compensation depends solely on the question of genuineness of the undertaking given by him. It is, therefore, appropriate that the petitioner avails the common law remedy of filing a civil suit before the competent civil Court for compensation, wherein the issue as to the petitioner’s undertaking said to have been given by him can be conveniently adjudicated by the civil Court on the basis of the evidence to be adduced by both the parties. For the above mentioned reasons, the writ petition is dismissed with liberty to the petitioner to file a civil suit. C.V.NAGARJUNA REDDY, J Dated 13th October, 2009 vrn