HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.18581 of 2009 Date: November 18, 2009 Between: Mohd. Elyas-UR-Rehman … Petitioner And 1. The Land Acquisition Officer & Revenue Divisional Officer, Eluru, West Godavari District and another. …Respondents * * * ORDER: This Court ordered notice before admission on 07.9.2009 and directed status quo to be maintained for a limited period which is being extended from time to time. 2. W.V.M.P.No.3269 of 2009 is filed by the second respondent to vacate the interim order. The learned Assistant Government Pleader for Land Acquisition had placed written instructions of the first respondent before this Court. At the request of the counsel on record, the writ petition itself is being disposed of finally. 3. Sri G. Madhusudhan Reddy, learned counsel representing writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition, the stand taken in the counter-affidavit and also the contents of the reply-affidavit as well and would maintain that in the facts and circumstances of the case the writ petition to be allowed. 4. The learned Assistant Government Pleader for Land Acquisition on the strength of the written instructions placed before this Court would maintain that Sections 9 (1), 9 (3) and 10 notices were issued to all the land owners and award was passed under Award No.45 of 2009, dated 23.9.2009. Meanwhile, Mohd. Elyas-Ur-Rehman, son of late Md. Suleman Saheb had filed W.P.No.18581 of 2009 against Mohd. Suleman, son of Smt. Quman Sultana and Land Acquisition Officer & Revenue Divisional Officer, Eluru and this Court granted an order of status quo. The learned Assistant Government Pleader also pointed out to the other portions of the written instructions wherein the details had been specified. 5. Sri P. Kesava Rao, learned counsel representing second respondent had taken this court through the contents of the counter- affidavit and also pointed out to the recitals made in the Document dated 08.9.2009 and also pointed out to the contents of the affidavit and the pleadings and also the judgment in O.S.No.14 of 2006 and would contend that in the facts and circumstances of the case, the writ petition is unjust and the same to be dismissed. 6. Heard the counsel. 7. The writ petition is filed for a writ of Mandamus declaring the action of the first respondent in mentioning the name of the second respondent alone as the owner of the acquired land admeasuring 47 square yards in T.S.No.310/2 of Eluru Town published in Form No.7 in ROC.No.1/2008 (SDT), dated 10.6.2009, issued under Sections 9(3) and 10 of Land Acquisition Act, 1894, as arbitrary, illegal and contrary to the provisions of the Land Acquisition Act and consequently direct the first respondent to deposit compensation amount for the above said acquired land in a court of law as required under Section 31 (2) of Land Acquisition Act and pass such other suitable orders. 8. It is the case of the petitioner that petitioner’s mother Smt. Fatima Bibi is the absolute owner of the property admeasuring 2254 square yards in Eluru Town, purchased under a registered sale deed, dated 13.5.1952, and was in uninterrupted possession of the said property as absolute owner. After his mother’s death, the petitioner is in possession of the said land. 9. Further it is stated that in 2008 the Government of Andhra Pradesh required 2254 square yards of site in Eluru Town and notice dated 16.7.2008 under Section 5-A of Land Acquisition Act (hereinafter in short referred to as “Act” for the purpose of convenience) was published. In the land admeasuring 47 square yards covered by T.S.No.310/2, the petitioner is having 7/12th share and the petitioner’s brother Mohd. Suleman had 1/6th share. 10. It is also averred that in the notice dated 16.7.2008 issued under Section 5-A of the Act the name of the second respondent (petitioner’s nephew) was mentioned as the owner of the property under acquisition. The petitioner issued notices dated 01.11.2008 and 05.3.2009 addressed to the first respondent bringing to his notice that the acquired property is a joint property of the petitioner and the second respondent and, therefore, compensation for the land acquired should be apportioned between the petitioner and the second respondent in the ratio of their shares in the property. Surprisingly, the first respondent issued impugned notice under Sections 9(3) and 10 of the Act, Form-7 ROC.No.1/2008 (SDT), dated 10.6.2009, mentioning the name of the second respondent alone as the owner of the acquired land of 47 square yards. In the said notice the acquired land is mentioned as 47 square yards. In fact, the land acquired was 63.21 square yards. Though the property is a joint property of the petitioner and second respondent, the first respondent is trying to disburse the compensation to the second respondent alone. 11. It is also further stated that to the impugned notice, the petitioner got issued legal notice, dated 24.6.2009, to the first respondent bringing all the above facts and requesting him not to disburse the entire compensation for the above said acquired land to the second respondent, as the petitioner is the joint owner of the said property. The petitioner further requested the first respondent to refer the matter to the Civil Court under Section 30 of the Act. In such circumstances, the writ petitioner approached this Court by filing the present writ petition and obtained an interim order as aforesaid. 12. In the written instructions placed before this Court, the 4(1) Notification, the other subsequent proceedings relating to 5-A inquiry, Draft Declaration under Section 6 of the Act and further proceedings under Sections 9 and 10 of the Act had been narrated. 13. In the counter-affidavit filed by the second respondent it is stated that the petitioner is elder paternal uncle i.e., elder brother of his father and originally the premises bearing M.No.19-1-39, comprising of 1000 square yards situate at Gunbazar, G.N.T. Road, Eluru, West Godavari District belongs to his father and he was the absolute owner and possessor of the same. The above said property was devolved on his father by virtue of a gift/hiba from his mother which was duly registered vide document bearing No.281 of 1995, dated 09.10.1995. The father of respondent No.2 died on 13.12.1994 and in view of his death, the above said property devolved on his mother, himself and his grandmother as per the Mohammedan Law. Subsequently, the grandmother of respondent No.2 had settled her share in his favour by virtue of deed of settlement registered vide document bearing No.747 of 1995, dated 10.02.1995. As far as the petitioner is concerned, he is totally a stranger and he does not have any right, interest or claim over the above said property. 14. Further it is stated that this respondent also has a share in the property bearing M.No.7A-9-7/1/1 comprising of 625 square yards along with the petitioner and one Mohd. Imran i.e., his paternal uncle’s son. As far as the property bearing M.No.19-1-39 is concerned, the petitioner filed a suit in O.S.No.14 of 2006 for partition and separate possession of 7/12th share against the second respondent and his mother on the file of the Court of the Principal District Judge, at West Godavari, Eluru. Respondent No.2 filed their written statement and contested the suit and the said suit was dismissed by judgment and decree dated 02.7.2007 holding that the petitioner herein does not have any share and the suit itself was devoid of merits. Aggrieved by the said judgment and decree, the petitioner had filed an appeal and the said appeal is pending. 15. As far as the property bearing M.No.7A-9-7/1/A is concerned, respondent No.2 filed a suit O.S.No.48 of 2001 for partition against the petitioner herein and others on the file of the Court of the Principal Senior Civil Judge, Eluru, and the petitioner herein filed his written statement and contested the same. After inquiry, a preliminary decree was passed by the judgment and decree dated 04.6.2007 holding that the second respondent is entitled for 1/4th share in the property. Aggrieved by the said judgment and decree, the petitioner herein had filed first appeal before the District Court, Eluru and the same is pending. 16. It is also stated that since the petitioner herein was addressing the second respondent that he is the son of Qumar Sultlana i.e., second respondent’s mother, instead of showing his father’s name, the second respondent filed a suit O.S.No.25 of 2007 for injunction restraining the petitioner herein from addressing the second respondent as son of Qumar Sultana on the file of the Court of Principal District Judge, Eluru, and the said suit was decreed in favour of the second respondent by judgment and decree dated 02.7.2007. Since the petitioner herein had not filed any appeal, the same had become final. On the advice of the elders and well wishers of both sides to have a peaceful and good relations, a partition deed was executed between the petitioner and second respondent dated 08.9.2009 vide document bearing No.5324 of 2009. In the said partition deed, the petitioner herein had categorically admitted that he does not have any share in respect of the properties allotted to second respondent’s share apart from giving an undertaking that they will not be filing suits against each other and the pending suits will be withdrawn by filing memos in the respective courts. 17. It is further stated that the property bearing M.No.19-1-39 was acquired by the Government for the purpose of construction of a flyover and approach road and in that process an extent of 47 square yards of land was affected including a huge building consisting of ground floor and first floor therein. In lieu of the said acquisition, the Government had awarded Rs.11,97,687/- towards compensation and costs for the land as well as the building. The petitioner, after coming to know about awarding of compensation, without having any right or interest demanded half share. When the second respondent refused to pay the same, the petitioner, misrepresenting the facts, filed the present writ petition and obtained interim orders of status quo. 18. It is also averred that the allegations of the petitioner in para 2 of the affidavit that his mother is the absolute owner of the property admeasuring 2254 square yards in Eluru Town, having purchased the same under a registered sale deed dated 13.5.1952 and since then she was in uninterrupted possession and after her death he became the absolute owner are absolutely false and incorrect. 19. In reply to the para 4 of the affidavit it is stated that the petitioner is not the owner and he is not having any right, interest or claim of any sort in the property bearing M.No.19-1-39 (T.S.No.310/2) situate at Gunbazar, G.N.T. Road, Eluru, as such, the first respondent had rightly issued notice under Sections 9(3) and 10 of the Act mentioning second respondent’s name alone as the owner of the acquired land of 47 square yards. Further, the allegations that the property is the joint property and he is the joint owner and at his behest, the first respondent passed award in his favour is absolutely incorrect. 20. Further it is averred that the ground and first floor constructed in the above said property was occupied by the second respondent and other tenants and running business. By virtue of the interim orders of status quo passed by this Court, the compensation is not being paid to the second respondent. Unless the compensation is paid, the second respondent will not be in a position to maintain the existing structure by raising supporting pillars, in which event there is every possibility of collapsing entire building. Therefore, the petitioner, by obtaining interim orders, is blackmailing the second respondent and putting him to ransom for extracting money from the compensation awarded by the Government. 21. A reply-affidavit had been filed wherein it is stated that in the property bearing M.No.19-1-39 (T.S.No.310/2), Gun Bazar, G.N.T. Road, Eluru, the petitioner had 7/12th share and respondent No.2 had 1/6th share. The property bearing M.No.19-1-39 was not included in the partition deed, dated 08-9-2009, executed between the petitioner and the second respondent. The contention that the petitioner does not have any share, whatsoever, in respect of the properties allotted to the share of respondent No.2 is false. 22. It is also stated that if respondent No.2 is paid the entire compensation for the acquired land, it would be difficult for the petitioner to recover his share of compensation in the said amount from him. Further, respondent No.2 has been collecting rent to the extent of Rs.36,00,000/- at Rs.4,00,000/- per year for the last 9 years high handedly when he is having only 1/6th share (title) in the property. 23. These are the respective stands taken by the parties. 24. The specific stand taken by the petitioner is that if respondent No.1 disbursed the compensation amount to respondent No.2 despite the pendency of A.S.No.280 of 2009 regarding title and ownership over the acquired land, the petitioner will be put to serious loss and damage. No doubt, further stand had been taken that the property bearing M.No.19-1-39 was not included in the partition deed, dated 08.9.2009, executed between the petitioner and the second respondent. 25. The recitals of the document had been well explained and a copy of the affidavit of the petitioner dated 13th March 2007 also is placed before this Court. In the light of the document which had been placed before this Court referred to above and also the averments made in the affidavit and inasmuch as specific stand had been taken that the subject matter of A.S.No.280 of 2009 is pending on the file of this Court, this Court is of the considered opinion that the writ petition be disposed of giving liberty to the second respondent to receive the compensation amount, the subject matter of the present writ petition, but however, it would be subject to the outcome of A.S.No.280 of 2009 said to be pending on the file of this Court. Thus, it is made clear that the liberty given to the second respondent to receive the compensation would be subject to the pending civil litigation between the petitioner and second respondent. 26. Accordingly the writ petition is disposed of . No order as to costs. ____________________ (P.S. NARAYANA, J) Date: November 18, 2009. BSB