THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.3320 of 2006
ORDER: (Per Hon'ble Dr. Justice Shameem Akther)
This Writ Petition, under Article 226 of the Constitution of
India, is filed by the petitioners for issuance of writ of Certiorari
quashing the judgment, dated 16.12.2005, passed in L.G.C.No.62
of 1998, by the Special Court under A.P.Land Grabbing
(Prohibition) Act, Hyderabad, (for short, 'Special Court'), whereby,
the subject LGC filed by the respondent No.2 herein/State to
declare the petitioners and the respondent Nos.4 to 10 herein as land grabbers, the structures raised by them over the application schedule land are illegal and unauthorized constructions, to evict them from the land grabbed by them, to award compensation of Rs.96,000/- for wrongful possession of the application schedule land by them, and to award profits accrued from the land in question to the respondent No.2 herein/State, was allowed, declaring that the petitioners and the respondent Nos.4 to 10 herein are in illegal occupation of the application schedule land without any legal entitlement and they are liable for eviction and were, accordingly, directed to deliver possession of the application Dr.SA,J & EVV,J 2 W.P.No.3320 of 2006 schedule land to the respondent No.2 herein/State within a period of one month from the date of the said order.
2. We have heard the submissions of Sri A.Sudershan Reddy, learned senior counsel, appearing for Sri G.Madhusudhan Reddy, learned counsel for the petitioners; Sri Harender Pershad, learned Special Government Pleader appearing for the official respondent Nos.1 to 3; Sri B.Narayana Reddy, learned senior counsel, appearing for Smt.N.V.Rajya Lakshmi, learned counsel for the respondent Nos.11 and 12; and Sri Kowturu Pavan Kumar, learned counsel for respondent Nos.13 and 16. We have perused the record.
3. During the pendency of this writ petition, providence has taken away petitioner No.2 herein and his legal representatives were brought on record as petitioner Nos.3 to 6, vide order of this Court, dated 18.04.2022, passed in I.A.No.1 of 2021. Further, respondent Nos.11 and 12 (Union of India and the Commissioner of Central Excise and Customs) were impleaded vide order of this Court, dated 25.02.2008, passed in WPMP No.4311 of 2008. Respondent Nos.13 to 16 were impleaded vide order, dated 01.07.2008, passed by this Court in WPMP No.8029 of 2008.
Dr.SA,J & EVV,J 3 W.P.No.3320 of 2006
4. For convenience of discussion, the parties are hereinafter referred to, as they were arrayed in the subject LGC No.62 of 1998.
5. Learned senior counsel appearing for the petitioners herein/respondent Nos.8 and 9 before the Special Court would contend that the impugned judgment of the Special Court is vitiated by serious errors apparent on the face of the record. The ancestors of the respondents got the application schedule land by way of grant from Sri Raja Ramedev Rao, paternal uncle of Sri Raja Rameshwar Rao of Wanaparthy and the respondents inherited the same from their ancestors and are living in the application schedule land from several decades. The application schedule land is situated in 'Phoolbagh village' within Nampally Mandal. The application schedule land was always dealt as private property by the authorities concerned. The application schedule land is a patta land. The ample documentary evidence adduced by the respondents viz., demand notices and receipts evidencing proof of payment of NALA tax, property tax, electricity charges, income tax, commercial tax, entry in electoral rolls, bank account statements etc., firmly establish their possession and enjoyment of the property in question. The Special Court failed to take into consideration the documentary evidence adduced by the Dr.SA,J & EVV,J 4 W.P.No.3320 of 2006 respondents and erroneously recorded a finding that they are land grabbers. By no stretch of imagination, the respondents can be termed as 'land grabbers' as defined under Section 2(d) or the structures raised by them over the application schedule land as unauthorized structures under Section 2(i) of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short, 'the Act'). Further, there are no specific documents reflecting the ownership of the applicant/State over the application schedule land. The State is claiming ownership of the application schedule land basing on the entries made in the Town Survey Land Register (TSLR). It is settled law that the entries made in the TSLR may be relevant, but in any event, cannot be conclusive proof of title. Further, there is no presumption that every entry made in TSLR shall be presumed to be true, until contrary is proved. It is not a record of right. Entries made in TSLR per se cannot create any cloud on the right, title and interest of a person in respect of any land. In the absence of any document to show that the application schedule land belongs to the applicant/State, the subject LGC could not even been entertained by the Special Court. Further, a mere prima facie bona fide claim to the land alleged to be grabbed by a person, cannot avert being roped in within the ambit of the expression 'land grabber'. What is germane is lawful entitlement Dr.SA,J & EVV,J 5 W.P.No.3320 of 2006 and not to a mere prima facie bona fide claim to the land alleged to be grabbed. Further, the Special Court indisputably is entitled to determine any question or issue including the question of title or possession in the proceedings initiated before it. The Special Court not only have trappings of a Court, but also of a civil Court and thus, entitled to determine complicated questions of title. The findings of the Special Court in the impugned judgment are ex- facie illegal, unlawful, based on no evidence, against the principles of natural justice, perverse, which resulted in miscarriage of justice and ultimately prayed to allow the Writ Petition as prayed for. In support of his contentions, the learned counsel had relied on the following decisions.
1. Hyderabad Potteries Private Limited Vs. Collector, Hyderabad District and another1
2. State of Andhra Pradesh Vs. Hyderabad Potteries Private Limited and another2
3. State of Andhra Pradesh Vs. P.V.Hanumantha Rao (dead) through LRs and another3
4. V.Laxminarasamma Vs. A.Yadaiah (dead) and others4
5. Narayan Govind Gavate and others Vs. State of Maharashtra and others5
6. Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others6 1 2001 (3) ALD 600 2 (2010) 5 SCC 382 3 (2003) 10 SCC 121 4 (2009) 5 SCC 478 5 (1977) 1 SCC 133 6 (2014) 2 SCC 269 Dr.SA,J & EVV,J 6 W.P.No.3320 of 2006
6. Per contra, the learned Special Government Pleader appearing for the official respondent Nos.1 to 3 would contend that the application schedule land is situated in Sy.No.93/1, 93/2 and 94/Part of Nampally Village. The Government conducted Town survey operations and implemented during the year 1982-83. During the town survey operations, the application schedule land was classified as 'Government PWD'. The application schedule land falls in T.S.No.1/1, Block 'H', Ward No.53 of Nampally village. The total extent of land in T.S.No.1/1 is 22,426 Square meters and in Column No.10 of TSLR, the application schedule land was recorded as 'Safayee Balda'. Out of the total extent of 22,426 square metres of land in T.S.No.1/1, the respondents have occupied 1789 square metres of land without any lawful entitlement and carrying on their business. A Gazette notification was issued under Section 13 of the A.P.Survey and Boundaries Act, showing the application schedule land as 'Government land'. Since nobody filed civil suits or raised any objections with regard to the said Gazette notification, the survey has become final and the application schedule land was recorded as 'Government land'. If at all the respondents claim any title to the application schedule land, they ought to have raised objection at the earliest point of time, i.e., when the gazette notification was issued under Section Dr.SA,J & EVV,J 7 W.P.No.3320 of 2006 13 of the A.P.Survey and Boundaries Act classifying the application schedule land as government land. Having not done so, the respondents now cannot contend that they are legally entitled to the land in question. There is no iota of evidence adduced by the respondents showing their legal entitlement over the application schedule land. The application schedule land was handed over to the Central Government and presently vests with the Central Government and several Central Government offices have come up over the same. Further, Sri Raja Rameshwar Rao instituted suits in O.S.Nos.241/1, 242/1, 243/1, 244/1 of 1952 before the IV Judge, City Civil Court, Hyderabad, for eviction of the occupants to whom his relative Raja Ramdev Rao said to have assigned the lands. The said suits were dismissed. Aggrieved by the same, Raja Rameshwara Rao has preferred first appeal and also second appeal before appellate forums, but they were also dismissed. Further, mere payment of taxes imposed by the Government and mere entry of name in the electoral rolls and bank account statements etc., would not, in any way, entitle the respondents to claim that they are lawful owners of the application schedule land. Further, the scope of extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India is very limited. The High Court, in exercise of Certiorari or supervisory jurisdiction, Dr.SA,J & EVV,J 8 W.P.No.3320 of 2006 would not convert itself into a Court of appeal and indulge in re- appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. The power to issue a writ of Certiorari is to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice had occasioned. In passing the impugned judgment, the Special Court neither acted without jurisdiction, nor acted in excess of it, or failed to exercise jurisdiction vested in it. Further, the Special Court neither refused to admit admissible, nor admitted inadmissible evidence, which has influenced the findings recorded in the impugned judgment. There is no perversity or manifest error apparent on the face of the record in the impugned judgment, so as to issue a writ of Certiorari, as prayed by the respondents/writ petitioners. The relief sought by the petitioners in this writ petition cannot be granted and ultimately prayed to dismiss the writ petition. In support of his contentions, the learned Special Government Pleader had relied on the following decisions.
1. Mandal Revenue Officer Vs. Goundla Venkaiah and another7
2. State of Andhra Pradesh Vs. P.V.Hanumantha Rao 7 (2010) 2 SCC 461 Dr.SA,J & EVV,J 9 W.P.No.3320 of 2006 (dead) through LRs and another8
3. Atlas Cycle (Haryana) Limited Vs. Kitab Singh9
4. Konda Lakshmana Bapuji Vs. Government of A.P. and others10
7. In reply, learned senior counsel for the respondents 8 and 9/writ petitioners would submit that since there is no provision of appeal enshrined in the Act against a decision of the Special Court in a land grabbing case, the same can only be challenged by way of a writ petition before this Court and this Court is under obligation to decide the validity of the judgment of the Special Court, even by re-appreciating the evidence on record, irrespective of the fact that a writ Court exercises supervisory jurisdiction.
8. Sri B.Narayana Reddy, learned senior counsel appearing for respondent Nos.11 and 12 contended that initially, the Revenue Department of Government of India, acquired a site opposite to the office of the then Inspector General of Police at Saifabad, Hyderabad, in the year 1958 from one Shri Nausherwa Khan for construction of combined office building for Income Tax and Central Excise Department. However, on the request of the State Government, the said site was exchanged with the State Government for construction of Ravindra Bharathi and the State 8 (2003) 10 SCC 121 9 (2013) 12 SCC 573 10 (2002) 3 SCC 258 Dr.SA,J & EVV,J 10 W.P.No.3320 of 2006 Government, in turn, allotted 14,297 square yards of land in T.S.No.1/1, Block-H, Ward-53 of Gagan Mahal Village (presently known as Phoolbagh, Basheerbagh). Out of the said land of 14,297 square yards, the State Government handed over 12,040 square yards in T.S.No.1/1, Block-H, Ward-53, Gagan Mahal Village (presently known as Phoolbagh, Basheerbagh) in the year 1961. Thereafter, the balance land of 2,257 square yards was also allotted to the Central Revenue Department in the year 1975 and accordingly, the State Government authorities handed over 2,257 square yards of land to the Central Revenue Department, vide panchanama, dated 04.02.2008, after removing encroachments. Further, this Court, vide order, dated 05.03.2008, passed in WPMP No.6868 of 2006, permitted the respondent Nos.11 and 12 herein to construct boundary wall in respect of 2,257 square yards in T.S.No.1/1, Block-H, Ward No.53, Phoolbagh, Basheerbagh, Hyderabad (which includes the application schedule land) and accordingly, compound wall was constructed. At present, the subject land is in possession of the Central Excise Department, Government of India.
9. Learned counsel for respondent Nos.13 to 16 would contend that though the property owned by respondent Nos.13 to 16 has Dr.SA,J & EVV,J 11 W.P.No.3320 of 2006 nothing to do with the subject matter of the subject LGC, the respondent Nos.11 and 12, under the guise of order, dated 05.03.2008, passed by this Court in WPMP No.6868 of 2008, are trying to encroach into their property for constructing compound wall. The permission obtained by respondent Nos.11 and 12 for constructing compound wall is adversely affecting the rights of respondent Nos.13 to 16, though they are not the parties to the subject LGC or to this writ petition. Once the compound wall is constructed covering the property of the respondent Nos.13 to 16, it will be difficult for respondent Nos.13 to 16 to claim the same.
10. In view of the above rival contentions, the following points have come up for determination in this writ petition:
1. Whether the impugned judgment, dated 16.12.2005, passed in L.G.C.No.62 of 1998, by the Special Court under A.P.Land Grabbing (Prohibition) Act, Hyderabad, declaring that the respondent Nos.8 and 9/writ petitioners have grabbed the application schedule land is liable to be set aside by exercising powers under Article 226 of the Constitution of India?
Dr.SA,J & EVV,J 12 W.P.No.3320 of 2006 POINT:-
11. A writ of Certiorari can be issued for correcting gross errors of jurisdiction, i.e., when a subordinate court or Tribunal is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction--by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. Further, be it a writ of Certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law, unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. Further, a Writ of Certiotari can be issued when it is shown that the Special Court failed to admit admissible and material evidence or had erroneously admitted inadmissible evidence, which has influenced the impugned findings. In Surya Dev Rai Vs. Ram Chander Rai11, which was 11 (2003) 6 SCC 675 Dr.SA,J & EVV,J 13 W.P.No.3320 of 2006 referred in Atlas Cycle's case (9 supra) relied by the learned Special Government Pleader, the Hon'ble Apex Court summarized various circumstances under which the High Court can exercise its jurisdiction under Articles 226 and 227 of the Constitution, which are as under:
1. Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
2. Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
3. Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction--by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
4. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
5. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
6. A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has Dr.SA,J & EVV,J 14 W.P.No.3320 of 2006 chosen to take one view, the error cannot be called gross or patent.
7. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
8. The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
9. In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
12. Bearing in mind the above settled principles of law, we would now venture to examine the controversy between the parties to the litigation, to arrive at a conclusion.
13. The factual matrix of the case is that the then Mandal Revenue Officer, Nampally Mandal, filed an application before the Dr.SA,J & EVV,J 15 W.P.No.3320 of 2006 Special Court under Section 8(1) of the Act, claiming title to an extent of 1,789 square meters of land situated in Survey Nos.93/1, 93/2 and 94/Part (correlated to T.S.No.1/1, Block-H, Ward 53) of Nampally village and Mandal, Hyderabad District (application schedule land), as per Town Survey Land Register extract of the year 1982-83, alleging that the respondents have grabbed the said extent of land without any lawful entitlement and prayed to declare the respondents as 'land grabbers', the structures raised by them over the application schedule property as illegal and unauthorized construction, to evict them from the land grabbed by them and to deliver vacant possession to the applicant/State, to award compensation of Rs.96,000/- for wrongful possession by the respondents and to direct prosecution of the respondents for committing the act of land grabbing.
14. The Special Court took cognizance of the case. The factum of taking cognizance of the case was published in Andhra Pradesh Gazette Extraordinary No.47, dated 11.05.1998, calling for objections, if any, from the interested persons in the application schedule land. However, no objections were received.
15. The case of the applicant/State, as narrated by the Mandal Revenue Officer, Nampally, is as follows:
Dr.SA,J & EVV,J 16 W.P.No.3320 of 2006 "The Town Survey operations were conducted in Nampally area in the year 1982-83 and to that effect, a notification under Section 13 of A.P Survey and Boundaries Act was issued and the same was also published. As per the town survey, the application schedule land situated in Survey Nos.93/1 & 2 and 94/P is classified as 'Government PWD'. The application schedule land falls in T.S.No.1/1, Block 'II', Ward No.53 of Nampally village. The total extent of T.S.No.1/1 is 22,426 meters and the same has been shown in Column No.10 of TSLR as 'Safayee Balda'. While so, the respondents, taking advantage of the fact that the application schedule land is vacant, occupied an extent of 1789 square metres. They raised temporary structures thereon and running business for the past 10 years. The hut dwellers occupied major extent of the application schedule land without any legal entitlement and hence, they are liable for eviction."
16. Respondent Nos.1 to 6 (respondent Nos.4 to 9 herein) filed counter stating as follows:
"They are residing in the application schedule land from times immemorial, having inherited the same form their ancestors. The allegations levelled by the applicant are not correct. Their ancestors constructed some houses in the application schedule land and they are continuing in possession of the same. Even otherwise, they perfected their title by way of adverse possession. Even as per the contents of the Statement of the applicant, respondent Nos.1 to 6 are in possession of less than 100 square yards. They requested the Government to regularize their occupation in terms of orders issued by the Government from time to time as they belong to down trodden community. The applicant himself admitted in his pleadings that the respondents are the slum dwellers. The term 'land grabbers' do not attract the slum dwellers. Therefore, the application is liable to be dismissed against them."
17. Respondent No.7 (respondent No.10 herein) did not choose to take notice in the subject LGC and hence, he was set ex parte vide order of the Special Court, dated 07.09.1997.
18. Respondent No.8 (petitioner No.1 herein) filed counter resisting the application, inter alia contending as follows:
Dr.SA,J & EVV,J 17 W.P.No.3320 of 2006 The application is not maintainable for non joinder of parties. Respondent No.8 and her husband are living in their ancestral house. Their ancestors lived in the schedule property since several decades. Originally one Y.Balaiah was assigned land before independence by Sri Raja Ramdev Rao, paternal uncle of Sri Raja Rameshwar Rao of Wanaparthy, Mahabubnagar District. The said Raja Rameshwar Rao instituted Suits in O.S.Nos.241/1 to 244/1 of 1952 before the IV Hon'ble Judge, City Civil Court, Hyderabad, for eviction of the occupants to whom, Raja Ram Dev assigned the land. On dismissal of the said suits, Raja Rameshwar Rao preferred first appeal and second appeal, but however, he was unsuccessful. Subsequently, Y.Balaiah constructed a house-cum-sheds for carrying out furniture and handicrafts works in the year 1949. Respondent No.8 is in occupation of 1725.71 square meters of land situated at Wanaparthy Bagh, Poolbagh, Basheerbagh, Hyderabad, and not an extent of 2,064 square metres, as alleged by the applicant. The photographs taken at the time of visit of the then Chief Minister in February, 1957 would clearly go to show that the husband of respondent No.8 is in occupation of the said land, way back from the year 1949. They have also paid NALA taxes etc., in respect of the application schedule land. The Tahsildar, Hyderabad Taluk, issued notice under Section 7 of the Land Encroachment Act on 27.07.1979, to which, the entire residents of the application schedule land tendered a reply. Satisfied with the said reply, the Tahsildar waived the notice. When the Special Officer, MCH, tried to interfere with their possession, the husband of the respondent No.8 filed Writ Petition No.10136 of 1985 before the Hon'ble High Court and got interim direction not to evict this respondent except by due process of law. The MCH has also issued notices to this respondent in the year 1959, claiming that it purchased the lands form the Government. Having noticed that this respondent has got a valid title, the MCH did not initiate any proceedings against this respondent. She, her husband and his ancestors are living the application schedule land from several decades having inherited the same from them and perfected their title by prescription. Hence, she cannot be called as a land grabber."
19. Respondent No.9 (petitioner No.2 herein) filed counter stating as follows:
"He is eldest son of Y.Balaiah. Due to untimely death of his mother, his father married respondent No.8. There was a partition between him and the respondent No.8 and as per the Partition Deed, dated 14.04.1995, they are living separately. He claimed that he, his father and their ancestors are living the application schedule land form several decades and perfected their title by prescription and adverse possession. To avoid disputes between the family members, he was allotted 400 square yards of land i.e., House No.5-9-54/73, Wanaparthi Bagh, Phool Bagh, Hyderabad, and he is Dr.SA,J & EVV,J 18 W.P.No.3320 of 2006 living therein. On coming to know about the filing of the subject LGC, he has impleaded himself as respondent. He is not a land grabber."
20. As the husband of the respondent No.8 and father of the respondent No.9 filed W.P.No.10136/1985 before the High Court against the Municipal Corporation of Hyderabad, the MCH was impleaded as respondent No.10 suo-moto by the Special Court, vide order, dated 22.03.2004.
21. Basing on the above pleadings, the Special Court framed the following issues:
1. Whether the applicant has title to the application schedule property vice versa the 8th respondent?
2. Whether the 8th respondent's claim of title is true, valid and binding? - Whether 8th and 9th respondents perfected their title by adverse possession?
3. Whether the rival title set up by 8th respondent is true, valid and binding?
4. Whether the respondents 1 to 7 have perfected their title by adverse possession?
5. Whether the respondents are land grabbers within the meaning of the Act XII of 1982?
6. To what relief?
22. On behalf of the applicant/State, Sri K.Lakshmaiah, the Mandal Revenue Officer, Nampally, was examined as PW.1, Sri A.Sriramulu, Mandal Surveyor, Nampally, was examined as PW.2 and Sri Manyam Konda, another Mandal Surveyor, Nampally, was examined as PW.3 and Exs.A1 to A5 were marked. On behalf of the respondents, respondent Nos.6, 9, 5, 1, 4 and son or Dr.SA,J & EVV,J 19 W.P.No.3320 of 2006 respondent No.8 were examined as RWs.1 to 6 respectively, Sri K.Srinivas, Section Officer, Circle VI, MCH, was examined as RW.7 and Exs.B.1 to B.206 were marked.
23. The Special Court, after adverting to the pleadings of the respective parties and elaborately discussing the entire evidence on record and after discussing various decisions of this Court and the Hon'ble Apex Court, allowed the subject LGC vide impugned order, dated 16.12.2005, holding that the respondents failed to establish rival title set up by respondent No.8 and the plea of perfecting title by way of adverse possession over the schedule land by all the respondents; the respondents are in possession of the application schedule land without any legal entitlement and they illegally occupied the application schedule land and therefore, they can be ranked as land grabbers within the meaning of the Act; the respondents are in illegal occupation of the schedule land without any legal entitlement and they are liable for eviction; since the respondents 1 to 7 applied for regularization of their respective sites possessed by them, the contesting respondents are also at liberty to apply for regularization within two months from the date of the said order; if they fail to get any favorable orders, they are liable for eviction and directed to deliver possession within one Dr.SA,J & EVV,J 20 W.P.No.3320 of 2006 month from the date of the order passed by the Government; Else, the concerned Revenue Divisional Officer is directed to evict the respondents from the application schedule land and handover vacant possession of the same to the applicant whiting a period of one month after expiry of the period fixed above and submit compliance report to the Special Court as per Rule 15 of the Rules framed under the Act. Aggrieved thereby, the respondent Nos.8 and 9 therein preferred this writ petition.
24. In the matters relating to land grabbing, Section 10 of the Act, which is a procedural provision, deals with 'burden of proof'. The said Section 10 of the Act reads as follows:
10. Burden of proof:- Where in any proceedings under this Act, a land is alleged to have been grabbed, and such land is prima facie proved to be the land owned by the Government or by a private person, the Special Court or as the case may be, the Special Tribunal shall presume that the person who is alleged to have grabbed the land is a land-grabber and the burden of proving that the land has not been grabbed by him shall be on such person.
25. A plain reading of the above extracted Section 10 of the Act would indicate that in any proceedings under the Act - (i) where a land is alleged to have been grabbed; and (ii) such land is prima facie proved to be the land owned by the Government or by a private person, the Special Court/Special Tribunal shall presume that the person who is alleged to have grabbed the land is a land grabber. When the presumption under Section 10 is drawn by the Dr.SA,J & EVV,J 21 W.P.No.3320 of 2006 Special Court/Special Tribunal, the burden of proving that the land has not been grabbed by him is casted on the alleged land grabber. Further, in view of the meaning of the words "shall presume" in Section 4 of the Indian Evidence Act, the effect of raising presumption under Section 10 of the Act would be that unless the alleged land grabber disproves that the land has been grabbed by him, the Special Court/Special Tribunal shall regard that the land in question has been grabbed by the alleged land grabber. So, firstly, let us see whether the applicant/State had prima facie established its case and proved its ownership over application schedule land. On behalf of the applicant/State, Exs.A1 to A5 were marked in evidence. As per the said Revenue Records, the extent of the land in T.S.No.1/1 was classified as 'Government PWD'. During the Town Survey, the application schedule land was in the possession of the Municipal Corporation of Hyderabad and hence, a notice was issued under Section 9(2) of A.P Survey and Boundaries Act under Ex.A4 to the Special Officer, Municipal Corporation of Hyderabad, in respect of the application schedule land. Further, in Ex.A1-True copy of Town Survey Land Register showing new and old survey numbers, the corresponding survey numbers of T.S.No.1/1 are shown as Survey Nos.93/1, 93/2 and 94/Part. In column No.6 of Ex.A1, the application schedule land Dr.SA,J & EVV,J 22 W.P.No.3320 of 2006 was recorded as 'Government Poramboke'. In column No.10 of Ex.A1, it was recorded as 'Safayee Balda'. In Column No.17 of Ex.A1, the total extent of T.S.No.1/1 was shown as 22,426 square metres. In Ex.A1, against the Column relating the 'present enjoyer', it was recorded as 'Government PWD'. In Column No.23 of Ex.A1, the application schedule land was shown as vacant land. In the Revenue Records, the land in Survey Nos.93/1, 93/2 and 94 Part is classified as 'Government land'. The local name of the application schedule land is mentioned as "Phoolbagh". Ex.A3 is the Xerox copy of Gazette notification, dated 22.04.1976, issued under Section 13 of the A.P. Survey and Boundaries Act showing the application schedule land as 'government land'. Since nobody filed civil suits or raised any objections with regard to the said Gazette notification, the survey has become final and the application schedule land was recorded as 'Government land'. The sketch showing the schedule land is marked as Ex.A-5. Thus, basing on the above documentary evidence, it was canvassed on behalf of the applicant/State that it established prima facie case and proved its ownership over the application schedule land and that the respondents have grabbed the application schedule land.
Dr.SA,J & EVV,J 23 W.P.No.3320 of 2006
26. Learned senior counsel appearing for the petitioners, relying on Hyderabad Potteries's case (1 supra), contended that there is no presumption that every entry made in TSLR shall be presumed to be true, until contrary is proved. It is not a record of right. Entries made in TSLR per se cannot create any cloud on the right, title and interest of a person in respect of any land.
27. It is settled law that entries in TSLR are no doubt relevant, but they are not conclusive and that the entries in the TSLR cannot be regarded as a sole guiding factor, but they have to be considered in conjunction with the other attending circumstances in dealing with the title and ownership of a particular land. It is to be borne in mind that every revenue record maintained by the Government, for whatever purpose it may be, cannot be treated as a Record of Right, but the entries made in the record of right indicate the fact of existing ownership and nature of the land etc. In the instant case, the documentary evidence adduced by the applicant/State reveals about (a) the old survey number; (b) the correlating survey number; (c) the classification of the land; and
(d) name of occupants. Further, in the documentary evidence adduced by the applicant/State, the old survey numbers as well as the correlating survey numbers were mentioned. The application Dr.SA,J & EVV,J 24 W.P.No.3320 of 2006 schedule land was classified as 'Government Poramboke', 'Safayee Balda', and 'occupied by MCH'. Therefore, notices were issued to the MCH under Section 9 of the A.P.Survey and Boundaries Act. Considering these facts, the importance of the entries made in the Government records in relation to the application schedule land, though would not amount to conclusive proof, cannot be discarded altogether. Further, as indicated above, the old survey numbers in which the application schedule land is situated and its classification was not challenged by the respondents, when Gazette notification under Section 13 of the A.P. Survey and Boundaries Act was issued. That apart, the person whose names find place in the Revenue Record can assert that he has title to the land and it is for the other side to disprove the same by leading cogent and convincing evidence. Further, it is settled law that parties to a case must stand on their own legs and prove their specific stand. They cannot rely on weakness or absence of defence of the other side to discharge their burden or onus, as the case may be. When the respondents are claiming title to the application schedule land, they have to prove their title by adducing cogent and convincing evidence regarding their lawful ownership over the same and that they are not land grabbers. The respondents failed to place on record a single scrap of paper showing their lawful title/entitlement Dr.SA,J & EVV,J 25 W.P.No.3320 of 2006 over the property in question, rebutting the evidence let in by the applicant/State.
28. Learned senior counsel appearing for the petitioners herein contended that the application schedule land was always dealt as a private property by the authorities concerned. We find no force in the said contention. In the revenue records maintained by the Government which are placed on record, the application schedule land was termed as 'Government Poramboke', 'Safayee Balda' 'Government land' etc. Neither the names of the respondents nor their ancestors find place in any of the revenue records maintained by the Government, which are placed on record.
29. Coming to the documentary evidence adduced by the respondents, as many as 206 documents were marked on their behalf. Placing reliance on Ex.B2-Certificate issued by the Khadi and Village Industries Board, Bangalore, the respondents contended that they are living in the application schedule land from several decades. A perusal of Ex.B2 reveals that the husband of respondent No.8 underwent training at Bangalore in Khadi and Village Industries and in that connection, certificate under Ex.B2 was issued in his name. In any event, Ex.B2 does not confer any Dr.SA,J & EVV,J 26 W.P.No.3320 of 2006 lawful title on the husband of respondent No.8, in relation to the application schedule land.
30. The respondents filed demand notices and payment receipts pertaining to Non-Agricultural Land Assessment Tax from 1969 onwards under Exs.B3 to B19. Similarly, the receipts evidencing the payment of tax to the Municipal Corporation of Hyderabad were marked as Exs.B23 to B30. Further, the demand notices issued by the Commercial Tax Department were marked as Exs.B39 to B44. Exs.B.47 is the receipt issued by A.P.State Achieves to K.Lakshmi Bai regarding issuance of C.C. of electoral rolls. Ex.B.48 is certified copy of Electoral Rolls for the year 1995, showing the name of Lakshmi Bai. Ex.B.49 is the property tax receipt. Ex.B.52 is an electricity bill in the name of K.Narasappa. Ex.B.53 is the permission for water connection. Exs.B.55 to B.79 are the correspondence made by the respondents with State Bank of Hyderabad and bank account details of M/s.Venkateshwara Furniture works. Exs.B.87 to B124 are demand notices and payment receipts pertaining to electricity charges. Exs.B125 to B146 are demand notices and payment receipts pertaining to telephone charges. Ex.B147 is the application of RW.4 made to MCH for construction of building. Exs.B.156 to 159 are Dr.SA,J & EVV,J 27 W.P.No.3320 of 2006 applications of the respondents to the Collector concerned, seeking regularization of subject land. The fact that the respondents have made applications to the Collector concerned seeking regularization of the property in question itself shows that they are in illegal occupation of the same. Exs.B.160 to B.206 are the purchase order postal letters given by ECIL to Sri Venkateswara Furniture Works. Here, it is apt to state that the demand notices issued by various Government departments is for the purpose of collecting revenue. The demand notices or payment receipts issued by any Government Department cannot be construed as the documents which establish/convey title or ownership in respect of a property in favour of person in whose name the demand notice was issued or who had made the payment for the same. Hence, the aforementioned documentary evidence adduced by the respondents will not, in any event, establish their lawful title or entitlement to the application schedule land.
31. Learned senior counsel appearing for the respondent Nos.8 and 9/writ petitioners contended that the ancestors of the respondents got the application schedule land by way of grant from Sri Raja Ramdev Rao, paternal uncle of Sri Raja Rameshwar Rao of Wanaparty, and the respondents inherited the same from Dr.SA,J & EVV,J 28 W.P.No.3320 of 2006 their ancestors and are living in the application schedule land from several decades. It is evident from the material placed on record that Sri Raja Rameshwar Rao instituted civil suits in O.S.Nos.241/1, 242/1, 243/1, 244/1 of 1952 before the IV Judge, City Civil Court, Hyderabad, for eviction of the occupants to whom his relative Raja Ramdev Rao said to have assigned the lands. The said suits were dismissed. Aggrieved by the same, Raja Rameshwara Rao has preferred first appeal and also second appeal before appellate forums and they were also dismissed. The dismissal of the suits and the appeals filed by Raja Rameshwar Rao goes to show that he has no lawful title or entitlement over the land covered by the aforementioned suits. Here, in the instant case, respondent Nos.8 and 9/writ petitioners are claiming land in question through the said Raja Rameshwar Rao and their ancestors, without there being any document to establish their lawful entitlement over the property in question. It is settled law that no one can transfer a better title than what he himself possesses. Since the title of Raja Rameshwar Rao to the application schedule land itself is doubtful, the claim of the respondents that their ancestors have got the application schedule land by way of grant from Sri Raja Rameshwar Rao, cannot have any credence.
Dr.SA,J & EVV,J 29 W.P.No.3320 of 2006
32. We have gone through the decisions cited by the learned senior counsel appearing for the petitioners. In Hyderabad Potteries's case (1 supra), the vendors of the petitioner therein purchased the property in question therein under registered sale deed and transferred the said property in the name of the petitioner therein through a registered sale deed. Further, the petitioner therein filed a declaration under ULC Act and the petitioner company was declared to be surplus land owner. Accordingly, the petitioner therein surrendered the surplus land. Though the Government initially granted exemption to the petitioner Company exempting the said land in question from the purview of ULC Act, however, the same was subsequently withdrawn. Thereafter, the petitioner company applied and obtained permission for construction of a multi-storeyed complex in a portion of the land in question therein. There is also no dispute that the Government vide G.O. Ms. No.467, Municipal Administration, dated 25-8-1992 changed the land from the industrial use zone to residential use zone to enable the petitioner company to construct a residential complex in a portion of the land. Moreover, the petition schedule land therein was a gap area between Bakaram and Gagan Mahal villages, which was not Dr.SA,J & EVV,J 30 W.P.No.3320 of 2006 covered at the time of initial survey. Thus, the property in question in the cited decision was conveyed to the petitioner therein under registered sale deed. But in the instant case, as observed supra, there is no single document to substantiate the lawful entitlement of the petitioners herein over the application schedule land. Hence, the facts of the cited decision are clearly distinguishable from the facts of the case on hand.
33. In P.V.Hanumantha Rao's case (3 supra), the Hon'ble Apex Court held that in the 'decision making process', if the Court, Tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusions or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining. In Laxminarasamma's case (4 supra), the Hon'ble Apex Court, while answering a reference, held that the Tribunal/Special Court constituted under the Act has the requisite jurisdiction to go into the question of adverse possession. There cannot be any dispute with regard to the preposition of law laid down by the Hon'ble Apex Court in the aforementioned decisions.
Dr.SA,J & EVV,J 31 W.P.No.3320 of 2006
34. In Narayan Govind Gavate's case (5 supra), the Hon'ble Apex Court held as follows:
"It seems to us that the High Court correctly applied the provisions of section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances, although it also appears to us that the High Court was not quite correct in stating its view in such a manner as to make it appear that some part of the initial burden of the petitioners under sections 101 and 102 of the Evidence Act had been displaced by the failure of the State, to discharge its duty under section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under section 106 of the Evidence Act, taken together with the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burdens under sections 101 and 102 of the Evidence Act."
In the instant case as indicated and discussed above, the oral evidence of PWs.1 to 3 and the documentary evidence under Exs.A1-true copy of Town Survey and Land Register showing new and old survey numbers and also the land shown as "G-PWD", A2- Rough sketch showing the application schedule land in yellow colour, A3-Xerox copy of Gazette notification issued under Section 13 of the A.P.Survey and Boundaries Act showing the application schedule land as Government land, Ex.A4-Notice issued under Section 9(2) of A.P.Survey and Boundaries Act and Ex.A5-Sketch showing T.S.No.1, Ward No.53, Block 'A' of Thotaguda Village, Nampally Mandal (original), adduced by the applicant/State, prima facie proves the ownership of the Government over the application Dr.SA,J & EVV,J 32 W.P.No.3320 of 2006 schedule land. The respondent Nos.8 and 9/writ petitioners have no lawful entitlement over the application schedule land. The evidence led on behalf of the respondent Nos.8 and 9/writ petitioners and the documents marked on their behalf do not make out a case on their behalf that they are not land grabbers. Under these circumstances, the Special Court is justified in recording a finding that the respondent Nos.8 and 9/writ petitioners are in illegal occupation of the schedule land without any legal entitlement.
35. It is also evident from the record that the Special Court neither refused to admit admissible and material evidence nor had erroneously admitted inadmissible evidence, which has influenced the impugned findings. Further, there is nothing on record to substantiate that Special Court has acted in flagrant disregard of the rules of procedure or violated the principles of natural justice. There is no manifest error apparent on the face of proceedings to issue a Writ of Certiorari as prayed for. Further, the Special Court neither acted without jurisdiction nor acted in excess of it or failed to exercise the jurisdiction vested in it. There are no circumstances to interfere with the impugned judgment by exercising extraordinary jurisdiction of this Court under Article 226 Dr.SA,J & EVV,J 33 W.P.No.3320 of 2006 of Constitution of India. The Writ Petition lack merit and is liable to be dismissed.
36. In the result, the writ petition is dismissed. No costs.
I.A.No.2 of 2017 (WPMP No.34082/2017) is dismissed, vide separate order. Other miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________ Dr. SHAMEEM AKTHER, J _______________ E.V.VENUGOPAL, J 28th September, 2022 Bvv