Smt.Y.Amruthabai, Basheerbagh, ... vs The Spl.Court Under A.P. Land ...
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        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

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

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

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

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

2001 (3) ALD 600

(2010) 5 SCC 382

(2003) 10 SCC 121

(2009) 5 SCC 478

(1977) 1 SCC 133

(2014) 2 SCC 269 Dr.SA,J & EVV,J

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

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

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

(2010) 2 SCC 461 Dr.SA,J & EVV,J

(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

(2003) 10 SCC 121

(2013) 12 SCC 573

(2002) 3 SCC 258 Dr.SA,J & EVV,J

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

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

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

(2003) 6 SCC 675 Dr.SA,J & EVV,J

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

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

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

"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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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