JUDGMENT
1. All the writ petitions can be disposed of by a common judgment, since the questions of law raised in all these writ petitions is one and the same.
2. For the sake of convenience and to appreciate the events leading to the filing of the respective writ petitions, brief facts are narrated hereunder:
In all these writ petitions, Sree Pancha Murthy Co-op. House Building Society Limited is the writ petitioner.
WP No. 11200 of 1998 was filed seeking writ of mandamus declaring an extent of 5 acres of land held by the petitioner in S. No.129 of 105 now treated as a part of TS No.1/1/1, BIock-H, Ward No.10 o-c Shaikpet Village, Golconda Mandal, Hyderabad District as having been handed over to the 5th respondent A.P. State Non-Resident Indians Re-Investment Corporatin Limited, Hyderabad (hereinafter called as ANRICH) as illegal and without jurisdiction and for consequential direction not to disturb the petitioners from the enjoyment of the aforesaid lands.
Writ Petition No. 19297 of 1998 was filed by the same society seeking writ of
mandamus to consider the application of the petitioner for grant of lay out dated 15-4-1998 and 16-6-1998 and sanction the same in accordance with the prescribed procedure over an extent of 5 acres of land in S. No.129/195 of erstwhile Shiakpet village, now at Road No.10, Banjara Hills, which is identified by the Government as T.S. No.l/1/1 Part Block-H, Ward-10, Shaikpet revenue village corresponding to new S. No.403 without insisting upon the production of no-objection certificate from the Hyderabad Collector, Urban Land Ceiling, Certificate and Registration, Hyderabad.
WP No.21431 of 1998 is filed by the co-operative society seeking writ of mandamus declaring an extent of Ac.2.38 gts. held by the petitioners in S. Mo.129/100 now treated as part of T.S. No.24/1/1, Block-H, Ward No,9, of Shaikpet village, Golconda mandal, Hyderabad district as having been handed over to the 5th respondent treating it as a Government land is illegal and without jurisdiction and not binding on the petitioner and consequently seeks direction not to disturb the possession of the petitioner,
WP No.23217 of 1998 filed by the Co-operative society seeking writ of mandamus challenging the communication declaring an extent of 10 acres of land held by the petitioners in S. No.l29/135/A now treated as part of T.S. No.l/1/1 of Block-H, Ward No.10 of Shaikpet village, Golconda mandal, Hyderabad district as having been handed over to the 4th respondent treating it as a Government land as absolutely illegal and not binding on the petitioner and consequently relief not to disturb the petitioners from the aforesaid lands.
In WP Nos.21431 of 1998 and 23217 of 1998; the petitioners also sought alternatve prayer seeking writ of mandamus directing the Government or its authorities including the Collector or Mandal Revenue Officer or any other authority under Government have no jurisdiction or authority, right, possession or even lawful claim to interfere with the right, title and interest and
possession and enjoyment of the petitioner society in respect of the land bearing S.Nos.120/105, 129/35/1 and 129/100.
3. Claims and counter-claims in WP Nos.11200 of 1998 and 19297 of 1998 :–The land in queston is related to an extent of 5 acres of land comprising of S. No. 129/105 of Shaikpet village, Golconda Mandal, Hyderabad district. It was originally assigned to and purchased by one Mr. Mir Hassan Alt Khan from Sarfekhas authorities of the erstwhile Nizam Government in the year 1340 Fasli equivalent to 1930-31. By Letter No.944 dated 22nd Bahman 1340 Fasli in file No. 149/13 of Laoni 40 “the Awal Talukdar” (Collector) District Atraf Badla (now Hyderabad District) of Sufekhas Mubarak communicated to the Tahsildar, West and South that an extent of 5 acres of land in S. No.129 was granted on patta in favour of Mir Hassan All Khan on receipt of Rs.500/- and that the extent of 5 acres of land shall be converted into non-agricultural land after regular sub-division. The Tahsildar was directed to deliver the possession to Mir Hassan All Khan. Subsequently, the Assistant Superintendent, Settlement by letter No. 18 dated 29th Isfandar 1340 Fasli in File No.18/13/40/ Fasli wrote to the Tahsildar that the land was assigned on patta to Mir Hassan AH Khan and the said extent has been subdivided and Tippens were also made for making the village boundaries map. In Vasul Baki 1340 Fasli an extent of 5 acres of land comprised in S. No.129/105 was shown as assigned land in favour of Mir Hassan Ali Khan. The said Mir Hassan Ali Khan remained in possession of the land. He sold the said extent of land in favour of Mechineni Seetha Rama Rao by a registered document dated 20th Azua, 1366 Fasli (equivalent to 27-9-1947) for a sum of Rs.5,000/-. The name of Mechineni Seetha Rama Rao was also mutated in all the records showing his name as owner. The said (sic name) was also entered in Powthi Bahies and he was in continuous possession and
enjoyment of the said land for a period of 27 years and sold the same to the petitioner society. Mechineni Seelha Rama Rao also paid the non-agricultural tax in respect of the said land. By document dated 12-2-1974 the said extent of 5 acres of land was sold to the petitioner society @ Rs.6,500/- per acre and the document was executed in favour of Mantena Adisesha Rajit and 5 others representing the society. Thus the Society became owner and possessor of the said extent of 5 acres of land. Even after the death of Mechineni Seetha Rama Rao, a legatee under Will Mr. M. Srivatsava Rao also endorsed this transaction and also executed the Power of Attorney in favour of the Society to get all permissions and other necessary things in favour of the petitioner Society. It is also stated mat the petitioner Society paid non-agricultural tax and from 1963 to 1974 it had paid a sum of Rs.2,640/-and from 1974 to 1993, it had paid a sum of Rs.24,391/- and from 1993 to 1996 it had paid a sum of Rs.12,240/-. A further sum of Rs. 14,140/- was demanded by the Mandal Revenue Officer and the same was also paid. The Society with an intention to get the lay otit sanction applied to the Municipal Corporation. But however, a letter was issued asking the petitioner to obtain the corresponding town survey number in respect of old S. No.129/105. Accordingly, the petitioner applied to the Mandal Revenue Officer for furnishing necessary information regarding availability of co-relative map after giving new T.S. Numbers. After the said letter Mandal Revenue Officer by letter dated 29-1-1998 informed that the land shown in S. No.129/105 was identified in T.S. No.1/1/1 part Block-1, Ward-10, correlating to S. No.403. Thus the existence of Survey Number was established and subsequently it was identified as T.S. No.1/1/1 Part, Block-H of Shaikpet village and the corresponding S. No.403. It is submitted by the petitioner that the predecesors in title have been in continuous possession right from 1931 and that the communication of
the Mandal Revenue Officer declaring that the said land is a Government land which was allotted to ANRlCH-5th respondent is wholly illegal and arbitrary. It is further stated that the respondents in the Gazette No.84, dated 9-9-1981 acknowledged and found that the said extent of 5 acres of land in S. No.129/105 was allotted to Mr Hassan All Khan, who figured at SI. No.14. Thus, it is stated that the name of Mir Hassan All Khan and Mechineni Seetha Rama Rao were being carried out in the revenue records. But, however, the survey authorities appeared to have conducted survey of the land without notice to the society or predecessors-in-title and revised survey numbers and boundaries are not binding on the petitioners as no notice was issued to them. Hence the society sought appropriate direction.
4. A counter has been filed on behalf of the respondents, which is almost common in all the other writ petitions. With regard to the averments some of the events have been narrated which are as follows :
5. Shaikpet village of Hyderabad District was formerly Surfekhas village. After merger of Shiakpet village in Diwani in 1389 Fasli (1949 AD), the administration of village was transferred to the control of the Government and all the records were made over to the Government. The initial survey of the Shaikpet village was commenced in 1326 Fasli (1920 AD) and the same was implemented in 1330 Fasli (1920 AD). S.No.129 measuring an extent of 3,288 gts. was shown as Government land which was locally known as “Kancha Tatti Khana”. In the year 1331 Fasli (1921 AD), a supplementary sethwar was issued creating S. Nos. 129/1 to 129/10 whereas S.Nos.129/1 measuring Ac.3094.39 gts and S. Nos.1229/2 to 129/10 together with measuring Ac.i93.03 gts. In 1334-35 Fasli (1924-1925 AD) S. No.352 measuring Ac.63-24 gts. was deleted and included in the adjoining viallage of Yellareddyguda.
In 1346 Fasli (1936 AD), a supplementary Sethwar was issued renumbering S. No. 129/1 as S. No.403 and S. No.404 deleting S.No.129/2 to S. No. 129/10, by way of creating new Survey numbers and numbering as S. No.353 to S. No.402. That in between period from 1337 Fasli (1927 A.D.) to 1341 Fasli (1931 A.D.) assignments were made by Avval Talukdar (District Collector) out of S. No.129/1 and S. Nos.129/11 to 129/84, 129/86 and 129/87 were created. Revised Survey was conducted in 1349 Fasli (1942 AD) onwards and completed in 1352 Fasli (1942 AD). S.No.l29/J 1 to 129/87 said to have been assigned revision S. Nos. in the Revision Books, but the said Revision Survey was not implemented in the Revenue Records. The Town Survey was conducted from 1964 to 1971 under the provisions of Andhra Pradesh Survey and Boundaries Act, 1923 and a notification was issued under Section 6(1) of the said Act and it was published in the Gazette dated 6-8-1977. Anybody is aggrieved by the final Gazette notification was entitled to file a civil suit with regard to the town survey numbers, within a period of three years from the date of the notification. Under Section 13 of the act nobody filed civil suit within the said period. The land in question is in TS No.l/l/l(Part) Block H, Ward No.lO and is classified as Government land. Hence the entry became final.
6. It is further submitted in the counter that differnet persons were claiming the Government land under alleged (35) Sarfekhas assignment. The Government in Memo dated 28-2-1981 directed the Collector to enquire into the claims of 35 assignments made by Sarfekhas authorities during 1340 Fasli (1938 AD). Notices were issued during May to August, 1981, but they could not be served as the concerned parties and their correct addresse were not available. Therefore, they published a notice in the Gazette dated 9-9-1981 and also local news papers dated 2-9-1981 inviting
objections. The alleged files in which Sarfekhas assignments were made were not available in the office of the Commissioner, Land Revenue. But, however, some of the files traced in State Archives were found to be irregularly maintained creating a doubt. Hence, the authorities decided to ascertain the genuineness of the signatures of the Sarfekhas authorities found in files obtained from the State Archives by comparsion with Collectorate files. The matter was referred to the Government Examine of Questioned Documents. The said Examiner infomred that the signatures of Sarfekhas authorities found on file obtained from the State Archives are forged and bogus. It is further stated that as per the revision book, S. No.129/105 is burial ground situated on the southern side of Anthaganikunta at Road No.!3 of Banjara Hills of Shaikpet village. To the said notice issued, the petitioner nor any person claiming interest has filed objections. A detailed report was sent to the Government on 5-2-1983 for rejection of the claim of Mir Hassan Ali Khan. Accordingly, the Government issued G.O. Ms. No.942 dated 23-6-1983 rejecting the claim of Mir Hassan AH Khan. In the meanwhile, requisition was received from the 5th respondent ANRICH for allotment of certain lands at the rate of market value and the same was handed over to the 5th respondent on 17-12-1992, against which the petitioner filed another Writ Petition 19297 of 1998. Thus, the petitioner filed aforesaid two Writ Petitions. Thus, it is the case of the Government in the counter that he is trying to establish his title to 5 acres of land in S.No. 129/105 which is a Government property and Writ Petition is not maintainable. It is also stated that the petitioner played fraud and created bogus assignment of Sarfekhas authorities. The so called Powthi Babies are bogus and fabricated and it is not a statutory record. With regard to the payment of non-agricultural tax, it is stated that the officers, who were involved in issuing the said tax
receipts, enquiries were initiated issuing bogus receipts. Therefore, the notices issued under non-agricultural assessment Act have no legal value. The Municipal Corporation has rightly insisted for producing town survey correlates to S.No.129/105 and the communication of the Mandal Revenue Officer stating that the co-related S.No.TS No.1/1/1 part Block-H, Ward 10, referred to S. No. 103 of Shaikpet village and it is a Government land is correct. The application of the petitioner for sanction of the layout was rejected as the property in question was Government property. It is also stated that aggrieved by the judgment delivered by the learned single Judge in Batch of Writ Petition 9414 of 1992 and Batch, Government preferred an appeal in WA No.815 of 1993 and Batch. Since the learned Judges differed in their views, the matter was referred to the third Judge, who held that the learned single Judge ought not to have enquired into a disputed question of title, possession and adverse possession. The subject matter in the Batch of writ petitions is the property situated in old S. No. 129 of Shaikpet village. It is also stated that apart from allotment of 30 acres of land to ANRICH an extent of one acre was also allotted to Water Works Department and it was handed over to the Water Works Department on 17-4-1998. It is further stated that writ petition is not maintainable. The petitioners are seeking civil remedy of injunction in proceedings under Article 226 of the Constitution of India. Hence, the writ petition is liable to be dismissed. Incidentally, it is also stated that the petitioner has filed the other WP Nos.21431 of 1998 and 23217 of 1998 in all involving Ac.17.33 guntas and they may be heard together and disposed of by a common order.
7. Counters were also filed by the Water Works Department stating that the Government have handed over one acre of land and the said extent did not form
part of 5 acres of land referred to in the writ petitions. Therefore, no relief can be claimed as against this respondent. It is also stated that they did not encroach in to the subject matter land.
8. 5th respondent-ANRICH filed a counter stating that an extent of 30 acres of land in S. No.346/l(403), New Shaikpet village was handed over to the Corporaton on 17-12-1982. The said land belongs to the Government and therefore, no relief can be claimed.
Details of WP No. 23217 of 1998:
The petitioner in this case also the same co-operative house building society. Extent invlved in this writ petition is ‘ 10 acres. According to the averments an extent of 10 acres of land situated in S. No.129/35/1 of Shaikpet village was originally allotted and purchased by Ravikal Venkatram Reddy from Sarfekhas authorities in the year 1930-31. The same letters in support of the title as referred to in the earlier writ petition are referred. The land was assigned to Venkatram Reddy on receipt of Rs.l,400/- as consideration. He remained in possession of the said land and thereafter he sold to it to Mechineni Seetha Rama Rao, who purchased the other land an extent of 5 acres covered by the earlier writ petition sale deed dated 10-8-1948 in favour of his mother Mechineni Seetha Rama Rao and Machineni Ananthamma and their names were accordingly mutated in the revenue records including Powthi Bahies. After a period of 27 years, they sold the said land on 12-2-1974 and 14-3-1974 to the said society. All other details are same as referred to in the earlier writ petition.
9. The contentions in the counter filed by the respondent is the same as filed in the earlier writ petition.
10. WP No.21431 of 1998 relates to Ac.2.33 guntas situated in S. No.129/100.
The title is traced stating taht the said land was purchased by Mr. Moulvi Khasim Ali, Son of Mohsin from the Sarfekhas authorities in 1930-31. The said land was sold for a sum of Rs.463-12 Annas. The said land was sold to Mechineni Seetha Rama Rao under a sale deed dated 18-5-1947 for a sum of Rs.3,000/-. Necessary entries were affected in the concerned revenue records and in 1974, which was sold through
document dated 21-2-1974 in favour of the society for a sum of Rs.16,950/-.
11. After narrating the averments in the writ petitions and also in the counters, the following particulars could be gathered:
That the petitioner Housing Society purchased a total extent of Ac.17.33 guntas comprised of the following details:
S.No.
Extent
Name
of the original assignee
Purchaser
from the assignee and date of document
Subsequent
purchaser from M. Seetha Rama Rao & Ananthamma & date of
agreement of sale
120/101
(old) corresponding to T.S. No.1/1/1 Block
H. Ward 10. Shaikpet village. (Ref : WP No.11200/98)
Ac.
5-00
Mir
Hassan Ali Khan
Mechineni
Seetha Rama and Ananthamma
27-9-1947
Sree
Pancha MurthyCo-op. House Building Society Limited
12-2-1974
and 14-3-1979
129/100
corresponding to T.S. No. 24/1/1, Block H, Ward No.9, Shaikpet village (Ref :
WP No.21431/98)
Ac.2-33
gts.
Moulvi
Khasim Ali
-do-
15-5-1947
-do-
22-7-1974
129/35/1
corresponding to T.S. No. 1/111, Block H, Ward No.10, Shaikpet village (Ref :
WP No.23217/98)
Ac.10-00
Ravikal
Venkatram Reddy
-do-
2-6-1948
-do-
12-2-1974
and 14-3-1979
12. According to the petitioner all three extents of lands were allotted to Mir Hassan Ali Khan and Moulvi Khasim Ali and Ravikal Venkatram Reddy respectively by the Sarfekhas authorities as early, as in 1930 equivalent to 1340 Fasli and subsequently these three individuals sold the land to Mechineni Seetha Rama Rao and Ananthamma in the year 1948 and in turn these lands were purchased by the society during the period 1974-79, by making subdivisions with Tippens, the land revenue
receipts and ryots books were also filed to trace out the original purchasers. Wasool Baqui was recorded in the name of the original owners and in Sethwar 1947, the name of Mechineni Seetha Rama Rao was entered. Even in Choufasia of Shaikpet village prepared in 1940-50, the name of Mechineni Seetha Rama Rao was mentioned. Non-agricultural tax was also received from them. It is the case of the Government that the different persons were claiming Government land in Shaikpet village on the
ground that they were assigned by the Sarfekhas authorities. Therefore, the Government intended to conduct an enquiry in respect of the claims and notices were issued to the concerned persons and also published in the Gazette. The notice was also published in news papers Eenadu and Deccan Chronicle. Files relating to Sarfekhas assignment were not traceable. But, however, the Commissioner of Land Revenue informed that they would be preserved by the State Archives when the State Archives was approached (hey found that the files were irregularly maintained creating strong suspicion of the genuineness of the contents. The files preserved by the Archives with that all the files available in the Collectorate office during the period in question, signatures of Sarfekhas authorities were not tallying with the others. Therefore, the matter was referred to the Government Examiner of the Questioned Documents and it was found that the signatures of the Sarfekhas authorities available on the files obtained by Archives were forged and bogus. Therefore, since no claims were made the report was submitted to the Government to reject the assignment in favour of Mir Hasaan All Khan and 15 others in respect of various extents of lands in G.O. Ms. No.942, dated 23-6-1983, they were treated as encroachers and directions were issued to the authorities to take further action against such encroachers as per rules and to resume the land. In the said G.O. the case of Mir Hassan All Khan and the case of Moulvi Khan and Ravikal Venkatram Reddy were separately rejected and the Mandal Revenue Officer was directed to resume the land as per law. It is also stated that one Mr. Gopal Yadav filed a suit in OS No.2 of 1987 on the file of the II Additional Judge, City Civil Court, Hyderabad, claiming the land in S. No.24/1/1 Block-H, Ward No.9 Shaikpet village for declaration of title. The suit was dismissed holding that it is at the Government land. The matter is pending in the appeal. The Town Survey
was conducted and it became final under Section 14 as no suit is filed within three years. In the said Town Survey, S.No.1/1/1 Part Block H, Ward No.lO, TS No.5 Part, Block H, Ward 10, TS No.24/1 Part, B!ock-H, Ward No.9 were classified as Government lands. 30 acres of land was allotted to ANR1CH. One acre was allotted lo the Water Works Department, three years to the police department, four acres to Satya Sai Trust. It is contended by the Government that the Sarfekhas authorities never allotted pattas in favour of these three persons referred to above and the documents were fabricated.
13. Some other litigations are also pending in the civil Court in respect of the land in Shaikpet village. The Commissioner, Municipal Corporation was directed to verify the town survey, block, ward. Therefore, Municipal Corporation was insisting NOC and Town Survey records. Hence, the Government submits that the petitioners have not been able to establish their title and hence the Orders of the Mandal Revenue Officer describing the land as Government land and also the action of l!ie Municipal Corporation in refusing to consider the same cannot be said to be illegal or contrary to law.
14. The points that arise for consideration in all these writ petitions is whether the lands in question are assigned lands by Sarfekhas authorities?
Whether the Government can adjudicate its own title?
Whether the entries in the town survey records would convey title?
Whether the allotment of land to other organisation without properly dispossessing the petitioner was valid?
15. Elaborate arguments were made by the learned senior Counsel for the
petitioners and also the learned Advocate-General and enormous case law was cited at the Bench.
16. The learned senior Counsel appearing for the petitioner Mr. K. Pratap Reddy raised the following contentions :
17. The Government has no power or authority to dispossess the petitioners without following the due process of law.
18. Admittedly, no proceedings were initiated under the provisions of the Land Encroachment Act or no suit was initiated. In such an event, the Government is estopped from claiming the title suo motu.
19. He further submits that adjudication of issues of title in favour of the Government cannot be done by the Government itself and it has to be held by the competent authority either under the statute or under the common law. It is also his alternative submission that there is a substantial dispute with regard to the ownership of the land and it is not open for the Government to decide the issue for itself. The only course left to the Government is to file suit for appropriate relief and not resort to any summary or illegal methods of conferring the title on itself.
20. The lands in question were Sarfekhas lands as admitted by the Government and they were assigned to various individuals including the petitioners. If the Government feels that the assignment of the land is contrary to any provisions of law, the assignment has to be cancelled in accordance with the law and the procedure adopted is wholly illegal and unknown to law. He also submits that demarcation of boundaries of various suveys under the provisions of the A.P. Survey and Boundaries Act are not binding on the petitioners or their predecesors-in-title since no notice was issued and even otherwise, it would not confer any title on the parties and it
does not affect the title of the person in possession. He further states that the isues arising under these writ petitions were already considered by the Division Bench of this Court in WP No.1963 of 1983 and WA No.188 of 1983 and affirmed by the Supreme Court in Stale of A.P. v. Merit Enterprises, . Therefore, the Government cannot reagitate the very same issues in these writ petitions. He lastly submits that the Municipal Corporation has no power or authority to demand No Objection Certificate or Clearance from the Urban Land Ceiling authorities. Therefore, he submits that the writ petitions are to be allowed.
21. On the other hand, the learned Advocate-General submits that the relief cannot be granted under Article 226 of Constitution of India, it is for the petitioner to approach the appropriate Forum or civil Court to adjudicate its rights. He also submits that the assignments granted in favour of the predecessors-in-title of the petitioners were found to be forged on the basis of the information furnished by the Government Examiner of Questioned Documents and therefore, the assignments were declared as null and void and the lands were resumed and allotted to various other departments, as the Government is the owner of the property.
22. It is not in dispute that the predecessors-in-title of the petitioners were granted assignments of Sarfekhas lands on payment of market value. Though it is stated by the learned Advocate-General that the assignments are forged, but at the same time, the fact remains that there were assignments in favour of these persons. As already stated original assignee in respect of 5 acres of land in S. No.129/105 of Shaikpet villae was one Mir Hassan Ali Khan Son of Wahid Ali Khan. He traced out his title to the proceedings dated 29th lsfandar 1340 Fasli corresponding to 22nd Behman 1340 Fasli in file No.149/13.
Similarly, in respect of Mr. Khasim Ali, Son of Mohin Ali, the assignment was made on 21 Behman 1340 Fasli corresponding to 25-12-1930. In respect of Mr. Ravikal Venkatram Reddy, he purchased the land from Sarfekhas authorities on 20th Behman 1340 Fasli equivalent to 24-12-1930. The extents referred to above in respect of the aforesaid persons was sub-divided with reference to the boundaries. Thus, all the three persons were in possession and enjoyment of the land ever since the allotment. The said land was purchased by Mechineni Seetha Rama Rao on 29-9-1947 under a Registered Sale Deed from Mir Hassan Ali Khan and the same was purchased by the society under an agreement dated 22-7-1974. Similarly, the land belong to the Ravikal Venkatram Reddy was purchased by Mechineni Seetha Rama Rao and Smt. Ananthamma under two documents dated 12-6-1948 for an extent of Ac.5.06 guntas. Subsequently, they were again sold to the Society under two documents dated 12-2-1974 and 14-3-1974. The name of Mechineni Seetha Rama Rao and the predecessors-in-title were also entered in the revenue records. In 1939 Fasli, Wasool Baqui Register, the name of Mr. Ravikal Venkatram Reddy in column No.3 (Actual Cultivator), was mentioned in respect of S. No.129/1 (Revised as S. No. 129/35/1) for an extent of Ac.10-00. Similarly the name of Mohd. Khasim was shown in respect of S. No.129/1 (Revised as S. No.129/35/1) for an extent of 2 acres and the name of Mr. Mir Hassan Ali Khan was shown in respect of S. No.129/1 (Revised as S. No.129/105) for an extent of 5 acres of land. In the Sethwar in respect of Shaikpet village similar details were mentioned. In column No.2, it was further stated that it is a patta land. Even in Powthi Bahies also the similar details are contained. Basing on these documents, it is submitted that the assignment made in favour of the petitioners by Sarfekhas authorities cannot be said to be illegal or
contrary to any of the provisions of the law.
23, The learned senior Counsel for the petitioner heavily relied on the judgment ofthe Division Bench and submitted that in respect of one of such assignees out of 35 Sarfekhas assignees by name Mr. Jqffar Ali Shareefwhen the proceedings under the Land Encroachment Act were sought to be initiated against successors-in-title, the Division Bench of this Court in a common judgment in Writ Petition No. 1963 of 1983 and Writ Appeal No. 188 of 1983 quashed the proceedings under the provisions of the Land Encroachment Act and allowed the successors-in-interest to undertake further construction of the multistoried building. The principles decided by the Division Bench aptly to the case on hand. The decision of the Division Bench has been affirmed by the Supreme Court in the case reported in Merit Enterprises’s case (supra). The judgment has been perused by me. The Government issued memo dated 28-2-1981 directing the Collector to enquire into assignment purported to have been made by the Sarfekhas. Consequently, the Special Deputy Collector issued notice published in the Gazette dated 9-9-1981. It contained 35 names including the names of three assignees referred to in these writ petitions, who are figuring at Sawmill No. 14, 27 and 33 and one Mr. Jaffar Ali Shareef at SI. No.5. The said Jqffar Ali Shareef has sold the property to various persons and in turn it was changed number of hands. Ultimately, some of the purchasers applied to Municipal Corporation for construction of multi-storied building and the same was also approved. At that point of time, notice was issued by the Government under Section 7 of the A.P. Land Encroachment Act and the same was challenged in WP No.1963 of 1983 and WANo.l83of 1983. Similar averments as contained in the present writ petitions were made. The Government filed counter which was referred to in the said judgment which is extracted below:
“The 2nd respondent, who is the Joint Collector, Hyderabad District, has filed a counter-affidavit on behalf of the respondents stating : Shaikpet village of Golconda taluk was formerly a Sarfekhas village and after the merger of Sarfekhas in 1358 Fasli the village vested in Khalsa (Government). The 1st survey of Shaikpet village was done in 1326 Fasli and Sethwar (Survey Register) was prepared in 1330 Fasli. According to the Sethwar Survey No. 129 measures Ac.3,228-29 guntas. Supplementary Sethwar was issued in 1331 Fasli and Survey No. 129 was divided into 10 subdivisions from S. No.129/1 to 129/10. Again in 1346 Fasli survey No.129 with all the sub-divisions was deleted and new survey numbers 353 to 404 were given keeping the total extent in-tact. During Sarfekhas regime some assignments were made in Survey No.129/11 to 129/87. A revision survey was again done for Shaikpet village in 1352 Fasli, but it was not implemented in the records. The revision survey map, which is available, is helpful to identify the lands on ground.
As there were some disputes in the lands at Banjara Hills of Shaikpet village, due to private claims, in the year !981 Government ordered appointment of a Special Grade Deputy Collector for identification and demarcation of Government and Private lands in Banjara Hills area. The Government instructed inquiry into 35 individuals, who are purported to have been assigned lands by Sarfekhas, which have neither been brought to revenue records nor survey records authenticate the fact so far. Accordingly, notices were issued to the 35 individuals.
Sri Jaffer Ali Shareef is one of the 35 individuals-assignees to whom Sarfekhas purported to have assigned land. The said original list of 35 assignees was
referred to the Government Examiner of Questioned Documents, Government of India, Hyderabad, who opined through letter dated 29-5-1982 that it is a forged document. As such, it is stated, Jaffer Ali Shareef did not get any right, interest or title over the land in S. No. 129/6 measuring Ac.6.20 guntas. Pursuant to the issue of notices and publication in papers, Karamath Ali had put in a petition on 10-9-1981 stating that he purchased the land Ac.6.20 guntas in S. No.129/6 from Jqffer Ali Shareef. He had also filed as many as 9 documents along with his petition. The enquiry officer seems to have held that the list of assignees was proved as a forged document and therefore, Jqffer Ali Shareef one of the assignees in the list, gets no right, interest or title over the said land. So far as the Khasra Pahani of 1954-55 is concern, the comment is that it does not indicate the presence of any such survey number like 129/6. On the contrary it shows Survey No.403 against which the name of Jqffer Ali is noted is classified as Government Poramboke. Therefore, it is stated, Jqffer Ali was only an encroacher. It is further stated that in the last page of Khasra Pahani, in which the names of unauthorised occupants are mentioned, including Jqffer Ali Shareef, are found in different ink and different writing. With reference to the 9th document, copy of the judgment in a Criminal Case, it is stated that it was held that this judgment in a criminal matter does not render any help for determining the claim of ownership and that from this judgment Karramat Ali cannot derive any title. The sum and substance of the whole matter is that the deed of assignment is a forged one and therefore later transfers cannot be given any weight in the matter of title to the property.
So far as the permit granted by the Municipal Corporation is concerned it is stated that the permit was granted
irrespective of any ownership or title and therefore such a permit does not convey any right, title or ownership of the Government land to the petitioner-firm. Consequently, the payment of taxes or building permit, etc., does not convey any rights over the Government land.
Since the construction commenced as illegal and without any right, interest or title to the premises, the action of the respondents 3 to 5 taken under the provisions of the Encroachment Act is just and proper.”
In this regard it is to be noted that the Government placed relevant records before the Division Bench and the Division Bench recorded the following findings:
“The relevant records were placed before the Court. At the very outset, in our view, it is better to refer to the proceedings taken by the Government to identify the Government lands in Shaikpet village on the basis of the complaints received by it. In our view, this point alone would be very clinching to decide the entire issue before us. In the counter filed by the Government in paragraph-3, it is referred to that there were some disputes in the lands at Banjara Hills of Shaikpet village due to private claims in the year 1981. Therefore, Government ordered appointment of a Special Grade Deputy Collector for identification and demarcation of Government and private lands in Banjara Hills area. The Government in their memorandum No. 1834/Q2/79 Revenue Department dated 28-2-1981 issued instructions to enquire into the claims of 35 individuals. // is now stated across the bar that after the enquiry is completed, a map has been prepared in the year 1982 identifying the Government and Patta lands and also those lands which have been recognised as lands that are accepted as assigned lands. The said
map is placed before us. From the said map, it is pointed out that the premises in question is bearing S. No. 129/75/D5 and it is in ‘white’ colour, indicating that it ispatta land.
Therefore, the lands in which the present constructions are going on are not Government lands, but die patta lands. The fact that the present lands are patta lands is also admitted by the respondents in paragraph-2 of the counter. In paragraph-2 it is stated:
“During Sarfekhas regime, some assignments were made in Sy. No.129/11 to Sy. No. 129/87 which are patta lands. The Revision survey of Shaikpet village was done in 1352 Fasli, but it was not implemented in the records and the Revision survey map is available which is helpful to identify the lands on ground. With reference to the Wasol Baqui i.e., correlation statement, the Revision Wasool Baqui shows Sy. Nos.129/11 to 129/87 which are patta lands which are also recorded in the Revenue Records.”
Thus, Survey No.129/75 is a patta land. This is clearly admitted in the counter. The map prepared in the year 1982 to identify the lands also indicates that these are patta lands. The Further demarcation of Dl to D5 are sub-divisions of Survey No.129/75 and it is in D5 plot that the petitioners are in possession and it is in this plot that the constructions are going on. The learned Counsel submits that even according to the case of the respondents the land in S. N.O.129/75/D5 in which the petitioners constructions are going, on is admittedly a patta land, and therefore, no notice under Section 7 could have been issued in the face of this admission. Therefore, it is contended taht the isue of notice is unwarranted and the same deserves to be quashed. The learned Government Pleader submitted
that this S. No.129/75 has to be treated as a differnet number with reference to the Town Planning Area. But, nothing is placed before this Court to indicate that it refers to municipal number. The very scheme of preparation of the map was to identify the lands with reference to survey numbers to find to which are patta lands and which are Government lands and which are the assigned lands during the Sarfekhas period, etc. The surrounding survey numbers given in the map clearly show that-the map is prepared with reference to survey numbers and not with reference to municipal numbers. Thus, we find sufficient substance in the contention raised by the learned Counsel for the petitioners that even according to the admission in the counter with reference to the map prepared by the Government itself, the premises in question is patta land therefore, no notice under Section 7 could have been issued treating the said land as ‘Government land’ and stating that the petitioners are in illegal occupation of the Government land. This itself is sufficient to allow the writ petition and quash the notice as it is issued with reference to patta lands and not Government lands. But, since both the learned Counesl have addressed elaborate arguments we are inclined to deal with those also.”
24. As can be seen from the above para, the authorities after the enquiry in 1981, prepared the map in 1982 showing the patta lands, Government lands, and those lands which have been recognised as lands that are accepted as assigned lands. The said map was perused by the Division Bench. There is no reference to the said map in the counters filed in these writ petitions and such a map was also not produced before this Court.
25. It is to be further noted in this regard that the Sarfekhas authorities have
issued assignments in favour of 35 persons in respect of whom enquiry was ordered by Memo dated 28-2-1981. Mr. Jafar Ali Shareef and the three assignees viz., Mr. Mir Hassan Ali Khan, Quasim Ali and Ravikal Venkatram Reddy are figuring in the list. In respect of the writ petition filed by the successors-in-interest of Jafar Ali Shareef, the Government pressed the very same contention stating that the assignee-owner had no title to the property as Deed of Assignment itself was forged. The said contention was repelled by the Division Bench by holding thus:
“The only submission by the respondents is that the petitioners are merely trespassers since no title passed on to them for the reason that the so-called original assignee-owner Jafar AH Shareef himself had no title to the property, the deed of assignment itself being a forged one, and therefore, proceedings under Sections 6 and 7 of the Encroachment Act could be taken. The Supreme Court has very clearly laid down that in such a situation there is a genuine dispute between the parties in respect of the question of title and until the Government succeeds in establishing its title to the properly it is not open to the Government to take proceedings under Section 6 or 7 of the Encroachment Act to summarily evict the petitioners. The dictum of the Supreme Court applies to the instant case on all fours.
The learned Counsel for the petitioners next contended that S. No.403 referred to in the schedule of the notice issued under Section 7 of the Act does not find a place in the survey and settlement records and therefore, the said survey number cannot be taken cognisance. In this regard he submitted that the village of Shaikpet was surveyed in the year 1326 Fasli (1917 AD) after the survey sethwar was issued in 1330 Fasli. According to the Sethwar there were
353 survey numbers in the Sethwar and survey number 129 covers an extent of Ac.3228-29 guntas. In 1331 Fasli a suplementary Sethwar was issued by dividing S. Nos.129 into 10 sub-divisions from S. Nos.129/1 to 129/10. Again in 1346 Fasli S. Nos.129/1 to 129/10 were deleted and re-numbered as S. Nos.353 to 404. It is stated that S. No.129/1 corresponds to S. No.403 and measures Ac.2967.27 guntas, which was classified as ‘poramboke’. The learned Counsel submitted that S. Nos.353 to 404 are not recognised in the survey and settlement records and the map prepared in pursuance of the survey conducted in 1326 Fasli is not available. The learned Government Pleader has also submitted that the village map is not available to find out whether the survey numbers were recognised. The learned Counsel further submitted that there was revision survey of the Shaikpet village in 1352 Fasli. Village map is prepared and that is available also. But the survey and settlement conducted were not implemented in the revenue records. Thus, it is submitted that since the village map prepared during survey of 1326 Fasli is not available, it is not possible to identify the land covered by S. No.129. Similar is the case with reference to the sub-divisions of S. No.129, viz., 129/1 to 129/10. So much so, there is nothing available to locate the land in S. No.129/1, which is treated to be equivalent to 403. Similar is the case with reference to S.No.129/6.”
With regard to the division of survey numbers and sub-division numbers done from time to time, it wsa held that it cannot be straightaway state that the land occupied by the petitioner was a Government land. It observed as follows:
“So far as the facts relating to the survey and settlement and preparation of the revenue records are concerned, the
learned Government Pleader also could not contradict the submissions made by the learned Counsel for the petitioners. In fact, those facts have been admitted in the counter filed by the respondents. What is submitted by the learned Government Pleader is after subdivision of the Survey No.129 into 129/1 to 129/10 there was a revision survey and S. Nos.353 to 404 were given in the place of S. Nos.129/1 to 129/10 by deleting the same. Therefore, S. Nos.353 to 404 must be deemed to be the survey numbers allotted for those 10 sub-divided numbers. It is not in dispute that these new survey numbers, namely 353 to 404, do not find a place in the survey and settlement records nor could it be said exactly as to what is the exact area of the new corresponding numbers to S.Nos.129/1 to 129/10. Therefore, it is submitted by the learned Counsel Sri Pratap Reddy that the Government itself is not in a position to identify the lands. In this view of the matter, it is submitted that survey No.403 cannot be taken notice of officially. Therefore, treating the land covered by S. No.403 as Government land the petitioners cannot be styled as encroachers calling upon their eviction by issuing a notice under Section 7 of the Act. Further the Khasra pahani refers to S. No.129 and its equivalent number ‘403’. The possession of about 75 persons is shown. We see sufficient force in this submission of the learned Counsel. It cannot be straight away said that the land occupied by the petitioners is the Government land. We have already noted that several persons were assigned the land in Survey No. 129 during the Sarfekhas period and they were all in possession and enjoyment of the same. Thus, as many as 75 persons were shown as having been in possession of the land in S. No.129 in the Khasra pahani. Out of those 75 persons Jafar AH Stiareefls at serial No.23. We are giving below the names of some of
the persons from the extract as furnished in English translated copy by the respondents:
1.
Jyoti
Bai W/o Gangaram
2-29
2.
Shamsheer
Mulk
9-26
3.
Raikal Venkat Ram Reddy
5-00
4.
Nawab Shamsheer Nawaz Jung
1-23
5.
Mohd.
Salem Khan
1-15
6.
Mohd.
Hussan Ali Khan
0-30
7.
Capt.Qasim
Ali Khan
2-33
8.
Capt.
Gulam Mohiuddin
2-06
9.
Soofi
Miya
0-24
10.
Abdul
Majeed Khan
0-11
11.
Gulam
Mohd. Qureshi
9-00
12.
Motilal
Sab
0-11
13.
Mohd.
Akber Ajam
17-16
14.
Mohd.
Laik Hussain
1-06
15.
Khaja
Moinuddin
0-13
16.
Imtiyza Ali Khan
3-30
17.
Khursheed Ali Khan, Plot No. 24
4-08
18.
Mohd.
Sardar Ali Khan, Plot No.99
2-03
19.
Mushtaq
Fatima, Plot No.4
2-36
20.
Abbasi
Begum (92)
2-35
21.
Para
Begum (3)
2-38
22.
Dr.
Ch. Vasu (6)
2-32
23.
Jafar
Ali Shareef (25)
6-20
24.
B.P. Kapadia (21)
2-20
25.
Goverdhan Lal (8)
2-32
27.
D.V. Rao (88-89)
5-00
28.
…………………..
34.
Dr. C. S. Vasu (10)
2-32
40.
Raja Bhagwan Dass
2-16
48.
Raghava
Chari
5-00
49.
Mir Iqbal Ali Khan
10-00
50.
M.K. Srinivas Naik
5-00
54.
Raja
Kishan Dass
5-00
56.
Tirambak Lal
5-00
61.
S.
Venkanna
5-00
62.
G.
Balamma
5-00
74.
N.K. Srinivas Naik
5-00
75.
Adi
Mallaiah
5-00
The Division Bench also perused the khasra pahai in respect of S. No. 129 and they were in possession and enjoyment of the same and the Division Bench observed that in respect of S. No. 129, 75 persons were shown as being in possession of various extents of lands in S. No.129 and some of the names were extracted by the Division Bench from the said khasra pahani. In the said names, Mr. Ravikal Venkatram Reddy finds at S. No.3, Cap. Khasim Ali Khan finds at S. No.7, Mir Hassan Ali Khan finds at S.No.6 and Jafar Ali Sharief finds at S. No.23, whose case was dealt with in writ petition referred to above. Commenting on the said names, the Division Bench observed as follows:
“The persons at serial number (2) namely Shamsheer Mulk, serial number (4) Nawab Shamsheer Nawaz Jung, serial number (22) Dr. Ch. Vasu, serial numer 24 B.P. Kapadia, serial number (27) D. V. Rao, serial number (34) Dr. C.S. Vasu, at serial number (40) Raja Bhagwan Doss, at serial number (48) Raghava Chart, serial number (54) Raja Kishan Doss, serial number (56) Tirambal Lal -are all well-noted persons in Hyderabad City. The note in the Khasra Pahani as against these 75 names is translated into English and a copy of the same is furnished by the respondents. The note runs thus:
“Field Inspection Remarks of Patwari in Khasra Pahani 1954-55 of Shaikpet village:
S. No.403 previous No.129 nature Tattikhana, Banjara Hills and Jubilee Hills (not legible) previously poramboke yearsly (not legible) Sita Fruit auction was being conducted. Subsequently, out of the total extent patta was issued in the name of one Ahmed Syed Hussain, In this, bungalows have (been) constructed (Torn off and not legible)
on a portion of it plots have been made for habitation and sold during Sarfekhas time (not legible). Some persoms from long time, vacant (Not legible) issued Government pattas. This practice is continued from Sarfekhas period till now. As subdivision was not done sivai jamabandi is being levied on the occupants of the land who were not given pattas.
2. In this extent, other than the extent mentioned above at present (not legible) possession of (paper torn off not legible).
The facts noted above disclose that the petitioners’ predecessors-in-title were in possession of the land as assigned to them and the possession has been noted in the khasra pahani, which is a Government record. Taking all these facts into consideration and keeping the fact that S. No.403 is not a recognised one in the background, it is to be held that the notice issued under Section 7 of the Act is untenable and the same needs to be quashed.”
26. The Division bench categorically found that the Sarfekhas survey settlement records and village map prepared in pursuance of the survey conducted in 1326 Fasli were not available and therefore, it held that new Sy. Nos.353 to 404 did not find place in survey and settlement records as to what is the exact area of the new corresponding numbers to S. Nos.129/1 to 129/10 and hence it observed that it cannot be straightaway said that the land occupied by the petitioner was a Government land. The Division Bench also noted that as many as 75 persons were shown as having possession and enjoyment of various extents of lands in S. No.129 as per khasra pahani for the year 1954-55,
27. The Division Bench also considered the effect of entry in the khasra pahani, it
was held to be a record of rights prepared in the usual course by the Government and it is in the custody of the Government. This record of right is prepared under the Hyderabad Record of Rights in the Land Regulation XVIII of 1358 Fasli. Section 4 speaks of the preparation and maintenance of record of rights. It is again Section 13 of the regulation that states that the entry in the record of rights shall be presumed to be true until the contrary is proved and now entry is lawfully substituted therefore. In the case of this provision, the entry in the record of rights that Jafar Ali Shareef was in possession of Ac.6.20 gts. in S. No.129 shall be presumed to be true until the contrary is proved and the new entry is lawfully substituted. Therefore, the contention of the learned Government Pleader in the face of this entry cannot be accepted that Jafar Ali Shareef was not in possession of the land as long as this entry remains in the records of rights.
28. From this finding, it has to be noted that the entries in the khasra pahani are presumed to be correct until they are validly substituted. Admittedly, in the khasra pahani filed by the petitioners, the names of the predecessors-in-interest of the petitioners were entered showing the extent held by them and the relevant survey numbers. No other document is produced by the Government to say that those entries were subsequently substituted lawfully. Even in the Wasool Baqui i.e., co-relation statement and the sethwar, the names of the predecessors-in-interest of the petitioners were mentioned as pattedars and survey numbers were also mentioned showing the extent. It is to be noted that Jafar Ali Shareef’s successors-in-interest filed the writ petition when the Section 6 and 7 notices were issued under the A.P. Land Encroachment Act. But, in the instant case, that stage was not reached, only the Government passed an order directing the Collector to resume the land in case of
Mir Hassan Ali Khan and in respect of Ravikal Venkatram Reddy and Khusim Ali, Joint Collector himself passed an Order. No document; is available to show that the proceedings under Land Encroachment Act were initiated and the petitioners were dispossessed. Therefore, the facts in Jafar Ali Shareefs case are quite identical to the facts in the case on hand to the extent ofthe title as can be traced out from 1340 Fasli onwards. It is not the case of the Government that the khasra pahani, Wasool Baqui and sethwar were forged and fabricated, but it is the only contention of the Government that the assignment made in favour of the petitioners by the Sarfekhas authorities was found to be forged and therefore, consequently any transfers made or entries affected in the revenue records was illegal and without authority of law.
29. The learned Counsel for the petitioner also submits that Powthi Bahies was maintained under the provisions of Section 582 of Revenue Manual (Majnu Malgujari of Government of Hyderabad) -Verification of Asamia (Ryots) and Powthi Bahies. The learned Counsel for the petitioner submits that at the time of jamabandhi, as per the translation of the said section, the following is the translation of the said section, the following is the translation of the said section :
“At the time of Jamabandhi, the land revenue collected from the Ryots must be entered in the Pauthibahis and the entry should be made specifically about the receipt of the land revenue from the Ryots. This should be done by the Patwari in order to appraise the tenants of the land revenue payable by them and land revenue paid and the arrears, if any. The District Collectors and other Officers of the District shall at the time of Jamabandhi also verify whether each Ryot have already paid land revenue payable by him. The Tahsildar
will also verify whether the land revenue properly collected and whether the amount collected and paid by the Patwari is in accordance with the entry made in the pauthi. Such verification will avoid the misappropriation of money by the Patwaris.
Sub- Para (2) : by letter No.3084 ofthe Secretary, Revenue, dated 4-3-1321 Fasli it has been clarified that the Officers concerned first go to the villages and verify the Pauthi and Pauthi should not be called to the District or Tahsil. The Collectors and Tahsildars may inform the Ryots from time to time that they should not give any more amount by way of revenue to the Patwaris than the one entry in the Pauthi and Pauthi should always be kept with the Ryots only. At the time of collection of land revenue entry should first be made in the Pauthi and Pauthi should immediately be returned to and the Ryots are instructed to see and verify whether the Patwari has entered the correct amount received from them or not. If the entry does not tally with the amount paid, complaint will be made to the Tahsildar and the Tahsildar will enquire into it.”
Therefore, referring to the said provision, the learned Counsel submits that in the Powthi Bahies details with regards to the nature of the land held and possession ofthe occupant are given and that also indicates the names of the petitioners as pattedars. I need not go into this aspect, inasmuch as the names of the petitioners were found in the Wasool Baqui register, sethwar and also the khasra pahani, which were scrutinised by the Division Bench of this Court. Hence, from the facts and events noted above and keeping in view the findings ofthe Division Bench, it has to be held that the petitioners’ predecessors-in-titfe were in possession of the land assigned to them and the possession has been noted in the khasra pahani, sethwar
and Wasool Baqui apart from entry in the Powthi Bahies.
30. The learned Counsel submits that the enquiry conducted in 1981 is no enquiry at all in the eye of law. That the Government published a notice in Gazette dated 9-9-1981. The notice did not contain the particulars as to under what provisions of law, the notice was issued and purpose for issuing such notice. If the assignments made by the Sarfekhas authorities was not genuine or it is forged or fabricated, necessary proceedings should be taken under the provisions of the relevant laws, but there cannot be a general enquiry in this regard and no individual notices were issued to the predecessors-in-title. Therefore, any enquiry conducted in pursuance of the notice dated 9-9-1981 is illegal and without jurisdiction and that cannot be taken into consideration for the purpose of deciding the title of the assignees. The learned Advocate-General submits that since the notice could not be served the Government published notice with regard to the title of the land in Shaikpet village, calling upon the objections from various persons. Notice was issued to 34 persons which inter alia contains the names of Mir Hassan Ali Khan (S. No.129/105), Mohd. Khasim Ali, son of Main Ali (S.No.129/100), Ravikal Venkalram Reddy (S. No.129/105). Apart from the names of the above three persons, the name of Jafar Ali Shareef, whose case was dealt with in WP No. 1963 of 1983 was also figuring at S. No.5 (Sy. No.129/6). The memo issued by the Government dated 28-2-1981 is as follows :
“Government have considered the issue relating to the assignment of lands in S. No.403 (Old No.129) Shaikpet (v) of Banjara Hills and they observe that the 35 cases of assignments which were purported to have been made in 1340 F by Sarfekhas administration were neither
brought to the Revenue accounts nor sub-divided nor supplementary setwar issued. Government therefore, direct that an enquiry into these 35 cases be conducted by the Collector with the assistance of the Special Grade Deputy Collector sanctioned in the G.O. fourth cited and detailed report on each case be sent to Government for consideration urgently.”
As can be seen from the Memo, the enquiry appears to have been ordered on the report of one Mr. G. Narayana Swamy. The consequential notice was issued on 9-9-1981. The preamble to the notification, it is mentioned “notice in respect of demarcation and identification of Government and private lands in Banjara Hills area of Shaikpet village and Hakeempet village of Golconda mandal of Hyderabad district, contents of the notice are extracted below:
“Whereas the attendance of the above named persons of their legal representatives or their successors-in-interest and whoever in possession of lands in the aforesaid Survey Nos. is necessary to give evidence and produce the following documents or articles in their custody in support of their claim in respect of Sarfekhas assignments in Banjara Hills area of Shaikpet and Hakimpet villages in Golconda taluk, Hyderabad district in respect of the Survey Nos. noted against their name.
1. Assignments Order.
2. Site Plan.
3. Any other document of title.
4. Receipts for payment of Land Revenue Assessment.
5. Any other relevant documents with reference to a Revenue enquiry of
assignments of Sarfekhas authorities now pending before me.
The aforesaid persons are hereby given notice to appear in person or through Counsel before me on the 10th day of September, 1981 at 11 a.m. and after the said date no representations from any person will be entertained and the enquiries conducted on the material available on record.”
Therefore, as can be seen from the aforesaid notice, it does not refer to any of the provisions under which they were called upon to submit necessary papers such as assignment Order etc. On the other hand, it established that the persons mentioned in the notice were in possession of the S.No. mentioned in the notice against their names. It appears that the records with regard to Sarfekhas assignments obtained from the State Archives were not maintained in a proper form and their genuineness was suspected and those records were sent to the Government Examiner of Questioned Documents with reference to some of the documents available in Collectorate and Government Examiner appears to have given opinion that the signatures of the Sarfekhas authorities were forged. Basing on the said Collector appears to have submitted a Report and on that report, the Government issued G.O. Ms. No. 942, dated 23-6-1983 and the Collector appears to have sent the report only in respect of 16 persons wherein the names of Mr Hassan Ali Khan was mentioned at S. No.13, but in the same notice, Jafar Ali Shareef was also mentioned at S. No.15. In the said Order the Government held that the question of recognising the title of the aforesaid Sarfekhas assignees or any individual claim through them did not arise. The Collector was requested to take further action against all the encroachers as per rules and resume the land. Admittedly, the Sarfekhas assignees or their successors-in-interest were not given any notice of the report of the Collector nor they were heard before recording such a finding. Even the G.O. Ms. No.942, was
not even marked to the persons who were affected by it.
31. It is not known as to what are the documents which are sent to the Government Examiner of Questioned Documents and their opinion is not final and the opinion of the Government Examiner was never furnished to the concerned persons. Therefore, in the absence of following such a procedure, any Order passed by the Government neither valid nor binding on the parties sought to be affected and the said Order is non est in law.
32. This aspect was also considered by the Division Bench. The learned Counsel for the petitioners in those writ petitions contended that the very reference to the expert and the decision taken by the Government thereon are all unilateral decisions and they are all not binding on the petitioners. The Division Bench approved the said contention stating “In our view there is sufficient for in this submission” It is further noticed that from the Government Memo dated : 28-2-1981 the Collector was directed to conduct an enquiry in respect of35 Sarfekhas assignments and the Collector only submitted enquiry in respect of 16 persons. In respect of other persons, it is not known what is the report of the Collector. But, however, the Joint Collector Incharge, Hyderabad district passed Orders on 12-1-1987 in respect of Ravikal Venkatram Reddy holding that the assignment was not genuine as such he has no right, title and interest is conveyed to the assignee in respect of S. No.129/35/1 of Shaikpet village. Since he has not submitted any claim, the land was treated as a Government land. Similarly in respect of Mohd. Khasim Ali, the Joint Collector issued proceedings on 18-7-1987 holding that the assignment was not genuine in respect of the land having an extent of Ac.2-33 gts. in S.No. 129/100. It is to be noted that when once the Government itself directed the
Collector to enquire into and submit the report, it is not known under what provisions the Incharge Joint Collector has passed the Orders. He has no authority or jurisdiction to pass such an Order. The Collector was only directed to conduct an enquiry and submit the report to Government for passing further Orders. And in fact it was done in respect of 16 assignees in G.O. Ms. No.942. But, in the instant case, the Incharge Joint Collector took upon himself the enquiry and passed the Orders while in other case, the Government itself passed the Orders. Thus, the Orders passed by the Joint Collector dated : 12-1-1987 and 18-1-1987 in respect of assignments made by Sarfekhas in favour of Ravikal Venkatram Reddy and Khasim Ali are without any authority of law and invalid. Thus, I am of the considered view that the Order of the Government in G.O. Ms. No.942, dated 23-6-1983 in declaring the land held by the petitioners as Government land, and also the Orders of Incharge Joint Collector dated 12-1-1987 and 18-1-1987 are absolutely without any legal basis and the said finding is wholly arbitrary and contrary to law.
33. The learned Advocate-General submits that the survey numbers mentioned by the petitioners was a non-existing survey number and therefore, it has to be presumed that the document produced, they are non-genuine. The learned Advocate-General submitted note stating that Wasool Baki Register and Sethwar Register are two statutory registers. The notes to the extent necessary is extracted below :
1. Wasool Baqui 1349 F Sethwar 1358 F
Wasool Baqui Register and Sethwar Register are two statutory registers prepared during Survey and Settlement process of a Village.
(a) Wasool Baqui 1349 Fasli (1939 AD)
Wasool Baqui :–This Register shows the correlation between old Survey Number particulars relating to khata
number, name of the khatadar, assessment and assessed area are recorded in this Register. Khata wise particulars are given in this regard. This Register will be prepared only once at the time by conducting Survey operation.
(b) Sethwar 1355 Fasli (1945 AD)
Sethwar :– This Register is the Land Register showing the particulars of Sy. No. its extent, name of the pattedar, classification of the land and assessment Sy. No. number wise particulars are recorded in this Register. Changes occurring in a particular Sy. Nos. are effected by issue of a supplementary Sethwar during this course of maintenance.
As per
records of Deputy Director Survey &
Land Records, Hyd, Dist. Wasool Baqui 1349-Fasli
As
claimed by petitioner Wasool Baqui 1349-Fasli
Khata
No.
Old Sy.
No.
New Sy.No.
Khata
No.
Old S.No.
New
S.No.
52-Razia Begum
41
42
52-Narsimha Rao
129/1
129/8
176
419
240
493
241
494
495
242
496
53-Ibrahimbagh
221
423
53-Mir
Iqbal Ali Khan
129/1
129/34
232
424
233
482
486
54-Mod. Amiruddin
166
409
54-Raikal
Vnkata Ram Reddy
129/1
129/35/1
178
421
422
177
420
174
417
191
443
444
55-Kundan
Singh
279
548
55-G.
Veeraah
129/1
129/97
308
528
309
573
310
580
311
581
56-Mohd.
lsmail
307
577
56-Mohd.
Khasim Ali S/o. Mohd. Moin Ali
129/1
129/100
315
594
316
595
57-Pujari
Muttia
84
97
57-Mir
Hassan ali Kahan S/o. Wahid Ali Khan58-Bandoji S/o. Netaji
129/1
129/105
58-Charan Das
139
360
58-Bandoji S/o. Netaji
129/1
129/110
2. Revenue Records :–
As per Revenue Records, there are only S. Nos. 129/11 to 129/34, 129/35, 129/36 to 129/84, 129/86 & 129/87. But, there is no such Sy. Nos. 129/35/1, 129/100 and 129/105 as claimed by the writ petitions.
34. Relying on the aforesaid particulars the learned Advocate-General submits that khata member in Wasool Baqui register never tallied. But it is to be observed that in none of the khata number it was mentioned that the land belonged to Government. Therefore, is for the other alleged khata holder to challenge the possession of the assignees, but it is not open for the Government to contend that it is a Government land. It has to be noted in this regard that these survey numbers have now been co-related to the town survey numbers by the Mandal Revenue Officer itself. Therefore, when once the old survey numbers are co-related to the revised survey numbers in town survey it cannot be said that these survey numbers did not exist at all. Further, according to the statement furnished by the learned Advocate-General 129 survey number was having an extent of Ac. 3288.02 gts. and it was divided as S.Nos.129/1 to 129/10. S. No.129/1 was changed to S. Nos.403 and 404 and 129/2; 129/10 changed to S. Nos.353 to 402. The Division Bench found that the revised Survey numbers were never entered in the survey records. Further in the khasra pahani, Wasool Baqui register and Sethwar, the survey numbers were mentioned. Even in the notice issued by the Special Deputy Collector, the names of 35 assignees and survey numbers were mentioned. There is any amount of confusion in S. No.129. The original S. No.129 was divided, again clubbed and again sub-divided. No authenticated records are available. But the fact remains that the subject lands formed part of S. No.129 and subsequently in Town Survey conducted during 1964-71
they were co-related to new T.S. Number. Hence, it cannot be said that the S. Nos. are non-existent.
35. The learned Advocate-General submits that the town survey was conducted under the provisions of the A.P. Survey and Boundaries Act, 1923 and the land in question was entered as Government land, the petitioners filed any suit as required under Section 14 of the Act and therefore, the entries in the town survey register have become final. Hence, the petitioners having not challenged the entries cannot now contend that it is not a Government land. On the other hand, the learned senior Counsel appearing for the petitioners submit that the entries in the town survey record are not final and not binding as no notice was given to the petitioners as contemplated under the Act. He relied on the following decisions:
MM Ponnuswami v, M Mariappa, AIR (30) 1943 Mad. 420
G. Nagarathnam Filial v. Guruswami Pillai, AIR (30) 1943 Mad. 727
Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo v. Pragada Ramamurthy Pantulu, AIR (39) 1952 Mad. 68
Poomangalalorakth Mariyam Karamavathi v, Palakkotanantakath Ummer Kutti,
M.S. Kandasamy Nadar v. The Province of Madras Through the District Collector of Ramnad At Madura,
State of A.P. v. Thimmappa, 1963 (2) An.WR 42 (NRC)
He also submits that it is for the Government to prove that notice under Section 13 of Town Survey Act was issued prior to the making of the entries and no presumption of issuance of notice was available unless the
notice is particularly pleaded and proved. He refers to the decision of this Court reported in Municipal Council, Rajamundry v. Simhadri Ranganayakalu, AIR 1955 AP 157. Even otherwise, he submits that common proceedings under survey would indicate the boundary or the identity of the land, but does not affect the title of the person in possession. Thus, any finality contemplating under the Act is only limited to the boundary and not to the ownership (See : G. Nagarathnam Pillai ‘s case (supra), Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo’s case (supra)). I need not refer to each and every case cited by the learned Counsel for the petitioner, suffice it to say that the A.P. Survey and Boundaries Act, is in pari materia with the Madras Survey and Boundaries Act. The sum and substance of all the decisions is that the finding of Survey Officer under Section 13 is not final as regards the title and even regarding the boundary, the same is final only when the party is put on notice and participates in the enquiry. Any enquiry or decision given under Survey and Boundaries Act, are only confined to the correctness of the boundary and it cannot determine the question of title. Admittedly, in the instant case, no individual notices were issued as required under Section 9 of the Act and the decision was also not communicated to the concerned individuals. Further, as per the decisions referred to above, it would be only final as regards the boundaries of the survey numbers, but it has not the effect of cither investing or divesting the title. Even from the notice dated 9-9-1981 it is clear that enquiry was with regard to demarcation of boundaries and not with regard to the validity or otherwise of the title of assignees. Thus, it is not a document which confirms the title of the persons. Therefore, any enquiry made under the said Act cannot have the affect of change of title from one person to another person. From the Gazette nolification, it is seen that the detailed town survey of Shaikpet village was completed
as required under Section 13 of the Act and they are conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded, unless modified by a decree of a civil Court. Thus, taking clue from this notification, the learned Government Pleader submits that the boundaries of all the survey numbers have become final and in the said boundaries, the land in question was declared as Government land. As already stated, that any declaration issued under A.P. Survey and Boundaries Act, 1923, it is only confined to the details of the boundaries and not to the title. It is also not known whether Section 5 notice was issued by the Government, those details are also not forthcoming in the Gazette publication. Therefore, under these circumstances, no credence can be given to the notification published on 25-7-1996 in Form No.55. Thus, I am of the view that the notification issued under the A.P. Town Survey Act is neither binding on the petitioner nor can it be said that it is a conclusive proof of declaration of title of the Government. It is also to be noted in this regard that the Government itself is declaring that land is a Government land and a substantial defence is put up by the petitioners tracing out the history right from Sarfekhas records. In such a situation, it would not be appropriate for the Government to declare for itself that the land belongs to the Government. It cannot decide the title for ilself, some authority under the Act or the civil Court has to decide the same. The learned Counsel relied on the judgment of the Supreme Court in Government of A.P. v. Krishna Rao, , wherein it was laid that a bonafide dispute between the Government and the occupant of the land exists, such a dispute must be adjudicated by the civil Court and the Government cannot decide the question unilaterally in its own favour and evict the tenant. The Supreme Court observed at Page 1085 in Para 9 as follows :
“…. The long possession of the respondents and their predeeessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the said property came to be vested in the Government as a result of acquisition and the further question- whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property, but, until that is done, the respondent cannot be evicted summarily”
36. The learned Counsel for the petitioner submits that this decision of the Supreme Court was also referred to by the Division Bench in Jaffar All Shareefs case and referring to khasra pahani, the Division Bench held that the Jafar Ali Shareef established the possession for over 50 years and therefore, they acquired the title by adverse possession. The Division Bench held that the petitioner or their predecessors were made liable to pay assessment under Section 3 at any time during these five decades nor can it be said that there was no bona fide dispute regarding the title to the property. Therefore, unilateral possession of the Government in its own favour cannot be the fountain or basis for a recourse to Section 6. Accordingly, notice was quashed and the Government was restrained from taking any steps under A.P. Land Encroachment Act against the petitioners. They were further restrained not to farther construct multi-storied building in the said premises.
37. In the instant case, it is not in dispute that the predecessors-in-title were in
possession of the land right from the date of assignment in 1340 Fasli. Even in 1981, the notice was given to the petitioners saying that they are Sarfekhas assignees and the Government in the Order dated : 23-6-1983 directed the Collector to take further action against the encroachers treating them as encroachers. Even the Orders passed by the Joint Collector dated : 12-1-1987 and 18-1-1987 it was directed that the lands shall be resumed. But, no proceedings were initiated under the Land Encroachment Act for the said purpose. Thus it goes to show that the possession was continued with the original assignees and thereafter with the vendees from time to time. Even the records namely Wasool Baqui register and sethwar indicated their name in the relevant columns of the revenue records. These records were considered to be the record of rights, as held by the Division Bench referred to above. Thus the petitioners have established their possession for more than 50 years even till today. No Orders have been passed dispossessing them by taking recourse to the A.P. Land Encroachment Act. Merely because, the lands were allotted to some other departments, it cannot be construed as dis-possession. The dispossession must be according to law and admittedly notices under Land Encroachment Act were not issued and hence till today, the petitioners are deemed to be in continuous possession of the land. Further, it is curious to note that the lands were declared as Government lands in G.O. Ms.No.942, dated 23-6-1983 and it is not known as to how the Government could hand over the possession to ANRICH on 19-3-1982 even prior to the declaration. In the case dealt with by the Division Bench, notice under Sections 6 and 7 were in A.P. Land Encroachment Act and at that point of time, the writ petition was filed by the successors-in-interest of Jafar Ali Shareef, who is one of the 35 Sarfekhas assignees along with the petitioners.
38. The learned Advocate-General submits that these records were maintained in collusion with the patwaris and other revenue officials and the action was taken against these persons for making wrong entries and therefore, the entries cannot be relied on. I am unable to accept this contention. Merely because, the action was initiated against the concerned persons, it cannot be construed that the entries are wrong and common finding given in the departmental enquiry against the officer is not binding on the land owners or assignees, as the case may be.
39. The learned Advocate-General strenuously contends that the writ petition is not maintainable. The petitioners are claiming title over the property which is coupled with the intricate questions of fact and therefore, the petitioners have only to file civil suit to vindicate their rights absolutely and hence writ petition is liable to be dismissed on this ground. The similar issue in case ofJqfar AH Shareefvjss, pressed into service by the Government Pleader in WP No. 1963 of 1983 and it was rejected. Ultimately, the writ petition was allowed against which the matter was carried by the State before the Supreme Court. The Supreme Court considered the said matter in the case reported in Merit Enterprise’s case (supra). The learned Counsel for the appellants State of A.P. again pressed the point contending that the High Court cannot undertake the exercise of fact finding process under Section 226 of Constitution of India and that the High Court ought to have dismissed the Writ Petition. The said contention was rejected by the Supreme Court. Paras 2 and 3 are relevant, which are reproduced below :
“The respondents were served with notice under Section 7 of the Andhra Pradesh Land Encroachment Act (for short ‘the Act”) on the premise that the land under encroachment belonged to
the Government and that the respondents were unauthorisedly occupying the same and proceeding to raise a building thereon. Right at the initiation of such proceedings the respondents approached the High Court praying for a suitable writ/direction or order so as to quash that notice and proceedings. The High Court entertained the writ petition and granted an interim stay of further proceedings. The said interim order was questioned by the State of Andhra Pradesh in this Court. Here another interim order directing suspension of the said Order of the High Court, pending the SLP, was passed. The SLP however, was dismissed in default; as a result whereof undisputedly the respondents were able to construct the building. The High Court when dealing with the main matter, took into account some Government documents and on reconciling them with others, deduced that the land in dispute was not owned by the Government and hence initiation of proceedings under Section 7 of the Act was uncalled for. This has given rise to the instant appeal.
Learned Counsel for the appellant-State raises a fundamental issue contending dial it was not the domain of the High Court to undertake such a fact-finding enquiry in proceedings under Article 226 of the Constitution. It has further been contended that the land in dispute was shown in the revenue records as belonging to the Government and thus should have predominantly been viewed over other Government documents so as to establish the title of the Government. On the other hand, it has been contended that the High Court is empowered under its extraordinary jurisdiction under Article 226 of the Constitution to widen or limit the parameters of any controversy it is dealing with. It is asserted that when the High Court chose to examine the entire matter
inclusive of the factual side, the State without demur participated in it and it cannot now question the discretion or jurisdiction of the High Court when a decision has gone against it. Otherwise, also it has been contended that the State has no explanation to the documents in which the land in dispute was shown to be in private ownership and not in State ownership”
Thus, it is not open for the Government to contend that this Court has no jurisdiction to go into the title of the petitioners. As already noted by me, the writ petitions were filed when the land encroachment proceedings were initiated in respect of the successors-in-interest of the land of original assignee Jafar All Shareef. But, in the instant case, such notices are yet to be issued, but the principle remains the same. For deciding the jurisdictional issue under Section 7 of Land Encroachment Act, the High Court is competent to go into the question of ownership. So also, when some declarations were made by the Government even prior to the initiation of the proceedings under Land Encroachment Act that the land belongs to the Government, the same enquiry could be conducted by the High Court. Until and unless the land encroachment proceedings are initiated against the present petitioners, they could not be evicted. Ultimately, when a notice of eviction is issued under the Act, necessarily the High Court ought to go into the question of ownership.
40. Thus, viewed from any angle, the argument of the learned Advocate-General is not sustainable. More over, it is a case where the Government declared the subject lands as belonging to Government on the ground that assignments made in 1340-Fasli were not genuine. Since such a declaration is held to be invalid, this Court for the reasons set out supra, the Government is no more the owner and on the other hand,
subsequent vendees of the assignees shall hold valid title and possession. In such circumstances, the question of filing suit does not arise.
41. The learned Counsel for the petitioner further submits that the municipal authorities have no authority to insist on urban land ceiling certificate and no objection certificate from the Collector. He relies on the decision of this Court reported in Mirza Wahed Ali Baig v. Special Officer, Municipal Corporation of Hyderabad, 1975 APHC Notes I, Subash Kumar Lohade v. The Special Officer, Municipal Corporation of Hyderabad, 1985(1) APLJ 20, M/s Annapurana Builders V. The Municipal Corporation of Hyderabad, 1987(1) ALT 644. This Court in Mirza Wahed Ali Baig’s case (supra), held that the Municipal Corporation has no power to go into the question of title for the purpose of granting permission. In S.K. Lohade’s case (supra), this Court held that the Municipal Corporation cannot insist No Objection Certificate from the Collector for the purpose of considering the application for the purpose of sanctioning of lay out and it cannot also insist for clearance certificate from the Urban Land Ceiling as held by this Court in M/s. Annapurna Builders (supra).
42. It is the case of the learned Counsel for the petitioner that except these two certificates, other documents have been filed. Therefore, in view of this, the WP No. 19297 of 1998 is disposed of with a direction to consider the case for the petitioner for grant of sanction of lay out, without insisting on Urban Land Ceiling and No Objection Certificate.
43. For the reasons set out, I have to necessarily conclude that the declaration by the Government or its authorities that the subject lands are Government lands is absolutely illegal and unsustainable in law. Accordingly, it is held that the original
owners are proper assignees by the Sarfekhas authorities and consequently the subsequent vendees shall be treated as lawful owners with valid title and possession. Accordingly WP Nos.11200 of 1998, 21431 of 1998, and 23217 of 1998 are allowed. WP No. 19297 of 1998 is disposed of with directions.
44. No costs.
45. In view of the disposal of the writ petitions, no orders are necessary in contempt case. Accordingly, it is closed.
