H.E.H. Nizam Fsii of Hydrabad Vs. Chief Secretary to Government, A.P. - Court Judgment

Excerpt:
property - claim on land - article 226 of constitution of india and urban land (ceiling and regulation) act, 1976 - father of petitioner claimed ownership of 400 acres of land - claim negatived as land vested in government and not private property - petitioner requested for reconsideration of claim - government rejected claim - petitioner filed writ petition seeking direction for respondents to decide claim - petition disposed of by single judge - petition before high court - government denied title earlier - held, no obligation on government to consider repeated representations - writ petition dismissed. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the.....order1. the sole petitioner viz., the nizam viii of hyderabad, mukkram jah bahadur, represented by his power of attorney seeks the following relief:--'......directing all the respondents herein toforbear from interfering with the possession and enjoyment of petitioner of 98 acres of land which is not demarcated separately but forming part of 'chiran palace' land encircled by a wall of 12 feet covered by survey no. 403 of shaikpet village, hyderabad west taluk which is the subject-matter of injunction orders in i.a. no. 260/1990 in o.s. no. 203/1990 on the file of learned ii assistant judge, city civil court, hyderabad and which is covered by the final orders of this hon'ble court in writ petition no. 903/1990 dated 20th february, 1990 and pass such other order or orders as this hon'ble.....

Judgment:
ORDER

1. The sole petitioner viz., the Nizam VIII of Hyderabad, Mukkram Jah Bahadur, represented by his power of attorney seeks the following relief:--

'......directing all the respondents herein toforbear from interfering with the possession and enjoyment of petitioner of 98 acres of land which is not demarcated separately but forming part of 'Chiran Palace' land encircled by a wall of 12 feet covered by Survey No. 403 of Shaikpet village, Hyderabad West Taluk which is the subject-matter of injunction orders in I.A. No. 260/1990 in O.S. No. 203/1990 on the file of learned II Assistant Judge, City Civil Court, Hyderabad and which is covered by the final orders of this Hon'ble Court in Writ Petition No. 903/1990 dated 20th February, 1990 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.'

There are 14 respondents including the Chief Secretary to Government, Secretaries of some Departments, the Collector, the Chief Conservator of Forests, the Director General of Police, the Competent Authority Urban Land Ceiling, the Special Officer and Commis sioner of Municipal Corporation of Hyderabad etc. The Government Pleader had taken notice at the stage of admission when the writ petition had come up for hearing in the vacation Court. When the matter came up for hearing on 19-6-1991 the Advocate-General appeared and two counter-affidavits -- one on behalf of the 1st respondent and another on behalf of respondents 5 to 8 -- were filed, and the matter was heard at the stage of admission. As the arguments were not concluded the matter was adjourned to the next day i.e. 20-6-1991. On 20-6-1991 it was adjourned at the request of the counsel for the petitioner and thereafter it underwent some adjournments and arguments were heard and concluded on 16-7-1991 and orders reserved.

2. I have heard the matter at some length and also perused the material produced by the parties at the stage of admission, as thecontroversy relates to about 100 acres of valuable land situated in an important residential area of the City and there have been a multiplicity of proceedings in the Courts.

3. Some relevant facts necessary for appreciating the controversy raised are as follows: Late Prince of Berar, son of the then Nizam and the father of the petitioner had claimed an extent of 400 acres as belonging to him. In a report of Sri J. P. L. Gwynn, I.C.S., Commissioner of Excise and Settlement of Estates and Member of Board of Revenue dated 13-8-1963 submitted to the Govern-ment, his claim was negatived on the ground that this was Sarfekhas land which was merged with Diwani and vested in the Government and was not private property. Thereafter, at the request of the petitioner, Government issued G.O.Ms. No. 1038 Revenue dated 30-6-1964 recognising his claim to an extent of 300 acres in old survey number 403 of Shaik-pet village and directed necessary changes in the Revenue records. As the land was covered by a notification under the Forest Act a direction was issued to the Chief Conservator of Forests to de-notify the said extent. However, the petitioner requested for reconsideration of his claim. In March, 1965, the Government issued instructions to the Collector to hand over 300 acres pending issue of final orders on his claim for 400 acres. Subsequently, by a memo dated 4-6-65 the Government rejected that claim for any extent in excess of 300 acres. A further representation was made on behalf of the petitioner on 18-6-65 for the said extent over 300 acres and this was sent by the Government to the Board of Revenue for scrutiny. After scrutiny in March, 1972, the Board found it extremely difficult to accept the claim of the petitioner in respect of this land. Against this decision of the Board, a Revision was filed by the petitioner before the Government and this was disposed of by G.O.Rt. No. 57 Revenue dated 11-1-1977 upholding the order of the Board of Revenue and directing eviction from the land over and above 300 acres. A perusal of the said G.O. indicates that the claim was for 400 acres and after examining the material and hearing the advocate the conclusion was reached and the advocate for the petitioner also conceded that the claim of his client was only 300 acres and the dispute was with regard to the measurement of the land. The G.O. directs that the petitioner should be evicted from any land in excess of 300 acres. The concession of the Advocate for the petitioner that claim was only for 300 acres has not been questioned in this writ petition nor in any other proceeding placed before this Court. The Tahsildar, Golconda, has recorded that possession of the said land in excess of 300 acres was taken over on 15-9-1982. In the meanwhile, there were proposals for the Municipal Park being established. In October, 1989, the Government requested the District Collector to keep the land in his custody and to protect the greenery and the existing environment, apparently because only 300 acres were de-notified as a reserved forest. At that stage, the petitioner filed W.P. No. 903/1990 on 25-1-1990 seeking a direction that the respondents should decide about his claim to this land. This was disposed of by a learned single Judge by judgment dated 20-3-1990, and it is useful to extract the order, as it is said to be the basis for the filing of the present writ petition:

'Heard the learned counsel for the petitioner and the learned Government Pleader.

The writ petition is filed in the following circumstances: According to the petitioner Chiraan Palace is part of the private property of the Nizam. According to him the Palace which is oval in shape situated in road No. 2, Jubilee Hills is in an extent of 396 acres as surveyed by the Government. The Government recognised the ownership of the Nizam to an extent of 300 acres. With regard to the balance of 96 'acres the petitioner contends that he raised a dispute before the Government claiming ownership of that 96 acres and the same is pending consideration before the first respondent. Evidently, this Court cannot go into the declaration of title in these proceedings under Article 226 of the Constitution. Since the question is pending consideration before the Government, I direct the Government i.e. respondents 1, 2 and 4 to consider the representation of the petitioner and dispose it of according to law as ex-peditiously as possible.

With the aforesaid direction, the writ petition is disposed of. No costs. Advocate's fee Rs.250/-'

On the same day when the aforesaid W.P. No. 903/1990 was filed, the petitioner filed O.S. No. 203/1990 on the file of the II Assistant Judge, City Civil Court, Hyderabad, against the Municipal Corporation of Hyderabad to which neither the Government nor any of its officers are impleaded as parties and an ex parte injunction was granted pendingthe suit which was also made absolute as no counter is said to have been filed and the said suit is said to be pending. The injunction granted in I.A. No. 260/1990 in the said suit reads as follows:

'.....The respondent Corporation is directed not to proceed with demolition without following the procedure till 26-2-1990, in respect of the suit schedule property i.e. all that piece and parcel of land existing in an oval shape admeasuring 396 acres, surrounded on all sides by an eight feet compound wall known as Chiraan Palace belonging to Prince Mukkaram Jah Bahadur H.E. the Nizam, situated on Road No. 2, Jubilee Hills, Hyderabad.'

4. By G.O. Ms. No. 300 dated 7-4-1990 the Government directed the land measuring 95 acres and odd which was being claimed by the petitioner should be entrusted to the Energy, Forest Environment Science and Technology Department for developing it into a park and the Collector was requested to hand over the land for that purpose. The Forest Range Officer, Hyderabad North, took possession of the land from the Municipal Corporation, Hyderabad, which was entrusted with it by the Tahsildar, Golconda, earlier on 5-11-1982.

5. To examine the contentions of the counsel for the petitioner based on the decision reported in K. Co-op. Building Socy. Ltd. v. Govt. of A.P., : AIR1985AP242 , that the land will not vest in the Government under the Urban Land Ceiling Act till the exemption application is disposed of, it is necessary to notice some more facts. The petitioner had filed a statement as required by the Urban Land (Ceiling and Regulation) Act, 1976. The proceedings pursuant to it ended with a decision that the petitioner was holding surplus vacant land and pursuant to a notification issued some time in 1982, the surplus vacant land even in the 300 acres accepted to be belonging to the petitioner vested in the State. The petitioner entered into an agreement with the Nassr Co-operative Housing Society Limited on 9-12-1981 agreeing to sell his land and it is useful to extract the agreement in extenso:

'.....WHEREAS THE FIRST PARTY is thesole absolute and exclusive owner and possessor of the land and building bearing Municipal No. 8-2-293/82 popularly known as CHIRAAN situate at Jubilee Hills, Hyderabad, the title to the said land has been duly recognised by the Government of Andhra Pradesh vide G.O. Ms. No. 1038 Revenue dated 30-6-1964.

AND WHEREAS the Government of Andhra Pradesh (Revenue Department) in Memorandum No. 2253/64-10 dated 24-3-1965 directed that necessary changes in all connected Revenue records be effected. The First Party is thus the absolute owner and possessor of the aforesaid property to the extent indicated therein.

AND WHEREAS the Second Party has requested the First Party to sell from out of the said property the excess land admeasuring about 250 (Two hundred and fifty) acres under the Urban Land (Ceiling & Regulation) Act, 1976 to the Second Party herein in accordance with G.O. Ms. Nos.4270 Revenue dated 10-9-80 and G.O. Ms. No. 136 dated 28-1-81.

NOW THIS AGREEMENT TO SELL

WITNESSETH :

1. The parties hereto have agreed that the surplus land in the said property be sold to the Second Party as per the terms and conditions hereinafter mentioned and the guidelines specified in G.O. Ms. Nos.4270 and 136 after exemption thereof is granted under the Urban Land (Ceiling & Regulation) Act, 1976.

2. The parties hereto have agreed that the sale consideration for the aforesaid surplus land shall be the maximum admissible and prescribed under the G.O. Ms. No. 136 and the same shall be paid within three months from the date of grant of exemption by the State Government against execution of conveyance. The Second party has this day paid a sum of Rs. 50,000/- (Rupees fifty thousand only) as and by way of part consideration through Cheque No. No. 981907 dated 7th December, 1981 drawn on the State Bank ofIndia, Receipt of which the First Party hereby admits and acknowledges.

3. The Second Party hereby agrees, undertakes and is obliged to comply with all the requirements of the aforesaid G.O. Ms. and further enroll and recruit genuine members with the undertaking that the said members shall also comply with the aforesaid guidelines. The consideration shall be paid to the Income Tax Department, Government of India towards the Income-tax dues of the Fist Party.

4. The Second party hereby convenants and assures the First Party that it shall do every thing necessary for obtaining the requisite permission or exemption from the provisions of the Urban Land (Ceiling & Regulation) Act, 1976. The First Party shall co-operate with the Second Party in that behalf.

5. The Second Party has this day been put in physical possession of the said land hereby agreed to be sold to the second Party. The First Party hereby specifically declares that the possession of the said land has been delivered to enable the Second Party to make necessary development and improvement in the said land for sale to its members.

6. The second Party may take all such necessary steps for enrolling the members and for obtaining such sanctions as may be considered necessary from the Municipal authorities or Local Bodies for approval of layout plans etc., as also for complying with the terms and conditions of the said G.O.Ms, and will be entitled to enter into agreement(s) with the individual members of the Society subject to G.O. Ms. No. 4270 and 136.

7. All costs and charges and expenses for obtaining sanctions, exemptions, permissions, approvals, layouts, betterment etc., shall be borne exclusively by the Second Party and shall be the sole responsibility of the Second Party.

8. It is hereby agreed and declared that the sale consideration shall be on the basis of per square metre as per the aforesaid G.O.Ms.

9. The second party shall not be entitled to any deductions or discounts for layout,1992 A. P./14 VII G-16 betterment etc. from the sale price.

10. It is hereby specifically agreed and declared that the First Party shall be entitled to demarcate the land to be sold and the same shall not include any buildings or land appurtenant thereto and the First Party shall be entitled to retain the land appurtenant to the buildings together with the buildings as also separate ingress and egress as he may consider necessary without any claims, objections or disturbance from the Second Party.

11. Rquisitions to make the title marketable will be complied with by the First party And the First Party assures the Second Party that it has not entered into agreements with any other person or society whomsoever in respect of this property and shall not hereafter enter into any such agreements.

12. The parties hereby agree and stipulate to complete the sale transaction by complying with the obligations and legal requirements. In the event of either of the party failing to comply with the terms and conditions of this agreement, the other party will be entitled to enforce the contract for sale by way of specific performance in the Court of law holding the defaulting party liable for all costs and consequences.

13. The First Party undertakes the responsibility for obtaining the clearance of the Income-tax authorities for the transfer of the title to the Second Party.

IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and year first hereinabove written out of free will and consent in the presence of the following witnesses : Witnesses: sd/- xxxxxFirst party1. sd/- xxxxx2. sd/- xxxxx sd/- xxxxxSecond Party '

After this agreement the Co-operative Society which undertook to do everything for obtaining exemption from the Urban Land Ceiling authorities have joined the petitioner in making applications for the said exemptionin respect of the land agreed to be sold. It is pertinent to nole that what was agreed to be sold to the Society was the land which was accepted by the Government in their Memo dated 30-6-1964 and the G.O. Ms. No. 1038 and the Memo dated 24-3-1965 as belonging to the petitioner viz., 300 acres. The preamble of the agreement states that, out of the excess land determined under the Urban Land Ceiling Act, 250 acres will be sold in terms of the G.Os., regarding grant of exemption on ap-plication of Co-operative Society mentioned in the preamble. This makes it clear that the application for exemption was in respect of the land held to be surplus from out of 300 acres recognised to be belonging to the petitioner by the Government. The request for exemption was rejected by the Government by its Memorandum No. 2164 dated 15-2-1983. This Court, however, by judgment dated 19-11-1987 in W. P. No. 1942/1983 directed the petitioner to submit a representation for exemption to the Government against which was to pass appropriate orders because the earlier rejection was without hearing the petitioner. The petitioner made such a further representation for exemption dated 25-2-1988 pointing out that there were huge arrears of tax like, Wealth Tax, Estate Duty, Income Tax and property tax etc. and referring to the agreement entered into with the Society and the rejection of the earlier application for exemption. The petitioner has also obtained an acknowledgment for this representation dated 25-2-1988.

6. The petitioner has filed W. P. No. 11497/1990 along with the Co-operative Society in which the prayer is as follows:

'.....directing the respondents herein togrant Exemption from the Urban Land Ceiling Laws u/S. 20 of the Urban Land Ceiling Act, 1976 to the oval property measuring about 398 acres of land situate in Shaikpet village (Banjara Hills and Jubilee Hill forming part of the survey No. 403 of Shaikpet village Hyderabad West Tq. by disposing of the petitioners claim referred to Govt. Memo No. 2253-R/64-10, Revenue Dept., dt. 24-3-1965 and the petitions of the petitioners dated 25th February, 1988, 22nd January, 1990 and 18-3-90 in terms of the Honourable High Court orders dated 19th November, 1987 in W. P. No. 1942/1983 and the order passed by this Hon'bie Court in W. P. No. 903/90 and further to permit the petitioners to dispose of the said land in accordance with the terms of the Govt. Orders.'

This was disposed of by an order dated 10-9-1990 with a direction to dispose of the application for exemption. But it is clear from the judgment that the prayer Tor exemption was in respect of 300 acres and it did not relate to the excess viz., 98 acres, though the prayer has mixed up with the direction in W.P. No, 903/ 1990 which has nothing to do with exemption under Urban Land Ceiling Act.

7. It is further stated that the petitioner has filed W.P. No. 4513/1991 in connection with the proceedings under the Urban Land Ceiling Act and it is still pending. I am referring to the aforesaid facts for underlying the prayer made in this writ petition with reference to the judgment in W.P. No. 903/ 1990. As noticed earlier the Government had negatived the petitioner's claim to title to any land in excess of 300 acres in 1965. There is no allegation in the affidavit in support of W;P. No. 903/1990 regarding the particulars of date of any representation for recognising the title over any land in excess of 300 acres which was pending with the Government. According to the material with the Government possession was also taken of this land and it is now with the Forest Department, where a park is existing. The direction in W. P. No. 903/1990 to consider the representation has to be understood in that background. Apart from this direction there is no obligation on the part of the Government to consider any representation when they have already rejected the claim of title of the petitioner in respect of any land over and above 300 acres. According to the counsel for the petitioner, no counter was filed in W.P. 903/1990 and, therefore, it must be presumed that a representation was pending. I am not prepared to accept this contention as no such assertion was made in the affidavit in support of the writ petition. It is stated in the present writ petition that a representation dated 22-1-1990 was made and was pending with the Government by the time the direction was given in the Writ Petition No. 903/1990. This is disputed by the respondents. The petitioner has not produced any acknowledgment of having filed the said representation though he has been careful in obtaining acknowledgement at the time of filing the representation for exemption referred to earlier. In the records of the Government there is an application containing a date 22-1-1990 but bearing the stamp of 13-7-1990 as having been received on that day. The stand of the Government is that no such representation was pending when the direction was given in W.P. No. 903/1990 and the one received on 13-7-1990 was after the issue of G.O.Ms. No. 300 dated 7-4-1990. As pointed out earlier in the suit for injunction filed before the Assistant Judge, City Civil Court, there is no relief of declaration of title and only the Corporation has been made a party. The petitioner was aware even in 1965 that the Government has been denying his title and the value of the land is several lakhs (if not crores) of rupees. But a suit for injunction has been filed in a Munsif Court without impleading the owner of the land, that is, the State. The representation made after the disposal of W.P. No. 903/1990 may be considered by the Government keeping the aforesaid facts in view.

8. The contentions of the counsel for the petitioner based on the decision reported in K. Co-op. Buildings Soey. Ltd. v. Govt. of A.P., (supra) has to be examined. An application for exemption under Section 20 of the Urban Land Ceiling Act is contemplated in various situations. One is, where the person who has filed the statement seeks an exemption before the draft statement under S. 8(1) of the act is served on him and this is dealt with in para 40 of the said judgment. One other situation is where after surplus is determined under the Act an exemption is sought in the light of guidelines issued by the Government in case such surplus land is to be sold in favour of Co-operative Society in accordance with the said guidelines. This situation is dealt with in para 33 (4) of the said judgment. In this case we are concerned with the latter situation, as the agreement itself contains a recital that it was in respect of land declared to be surplus within the extent recognised to be belonging to the petitioner. The contention of the counsel for the petitioner that till the application under Section 20 is disposed of, the land will not vest in the State placing reliance on the observations in paragraph 40 of the aforesaid judgment is, therefore, untenable. To my mind, this contention is not tenable also because the representation which was directed to be considered in W.P. No. 903/1990 was not regarding grant of exemption under the Urban Land Ceiling Act, but with respect to the petitioner's claim for recognition of the title to the land in excess of 300 acres. The representation said to be prepared on 22-1-1990 was filed only on 15-7-1990, apparently with a view to take advantage of the earlier direction in W.P. No. 903/1990. When the Government has denied title over two decades ago, there is no statutory obligation on the Government to consider any or repeated representations. Similarly, the injunction obtained by the petitioner from the Munsifs Court in respect of valuable property without impleading the owner and its terms as extracted above do not have any relevance for deciding the controversy raised.

9. In the light of this background, we have to examine the relief sought for by the petilioner which has been extracted earlier. The petitioner's title has been denied in about 1965. According 10 the records of the Government possession of the land is with the Government. The direction in W.P. No. 903/ 1990 or the pendency of the suit have no relevance to the relief of injunction sought for by the petitioner. The petitioner, in essence, seeks an injunction against the State in respect of a Government land over which he has no possession since before the filing of the writ petition. It is not appropriate to entertain a writ petition for the aforesaid relief. I have referred to several proceedings at some length because of the repeated litigation which is arising from this property and it involves valuable property in an important residential area of the city. The writ petition is, therefore, dismissed.

11. Petition dismissed.