Telangana High Court
M/S. Shanta Sriram Constructions Pvt. ... vs Thogaru Upender on 10 January, 2024
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
Writ Petition No.5049 of 2016
AND
Civil Revision Petition No.406 of 2021
(Previously Civil Miscellaneous Appeal No.524 of 2020)
W.P.No.5049 of 2016
Between:
M/s.Shantha Sriram Constructions Private
Limited, Rep. by its Managing Director
M.Narasaiah, S/o.Sreeramulu, aged about
44 years, R/o.501, Oiasis Centre, Begumpet,
Hyderabad.
...Petitioner
And
1. The State of Telangana, rep. by its Principal Secretary,
Revenue Department, Secretariat, Hyderabad and others.
...Respondents
C.M.A.No.524 of 2020
Between:
M/s.Shanta Sriram Constitutions Pvt. Ltd.,
having its registered office at 501, Amogh
Plaza, beside Grand Kakatiya Hotel,
Begumpet, Hyderabad- 500 016, rep. by its
Managing Director, M.Narasaiah,
s/o.Sriramulu, aged about 50 years,
Occupation : Business, R/o.H.No.8-2-
417/A/2, Road No.6, Banjarabhills,
Hyderabad.
...Appellant
And
Thogaru Upender, S/o.Laxmi Narayana,
aged about 30 years,Occupation : Business,
R/o.1-81, Munagala Mandal,
Venktramapuram, Suryapet, Nalgonda District.
...Respondents
Date of Judgment pronounced on : 08.03.2021
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes
to Law Reporters/Journals:
3. Whether His Lordships wishes to see the fair copy : Yes/No
Of the Judgment?
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THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
Writ Petition No.5049 of 2016
AND
Civil Revision Petition No.406 of 2021
(Previously Civil Miscellaneous Appeal No.524 of 2020)
% 08.03.2021
# M/s.Shantha Sriram Constructions Private
Limited, Rep. by its Managing Director
M.Narasaiah, S/o.Sreeramulu, aged about
44 years, R/o.501, Oiasis Centre, Begumpet,
Hyderabad.
...Appellant
And
$ 1. The State of Telangana, rep. by its Principal Secretary,
Revenue Department, Secretariat, Hyderabad and others.
...Respondents
< GIST:
> HEAD NOTE:
!Counsel for the Petitioner
in W.P.No.5049 of 2016 : Sri Zeeshan Adnan Mahmood
^Counsel for the respondents : Sri Harendera Prasad, Special Govt.
in W.P.No.5049 of 2016 Pleader attached to office of the
learned Advocate General for the State
of Telangana
!Counsel for the appellant
in C.M.A.No.524 of 2020 : Sri Zeeshan Adnan Mahmood
^Counsel for the respondents : Sri M.Sarath Kumar
in C.M.A.No.524 of 2020
? Cases referred
1.(1999) 3 SCC 555
2. (2010) 13 SCC 511
3. (1982) 2 SCC 134
4. (2014) 2 S.C.C. 401
5. 1995 Supp (2) SCC 290
6. (2014) 15 S.C.C. 197
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THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
Writ Petition No.5049 of 2016
AND
Civil Revision Petition No.406 of 2021
(Previously Civil Miscellaneous Appeal No.524 of 2020)
COMMON ORDER :
Since the subject matter of both these cases is the same parcel
of land and the respondent in the CMA is making a claim to a portion
of it ostensibly on a promise made by Revenue officials of the State of
Telangana to allot/assign it to him, they are being disposed of by this
common order.
W.P.No.5049 of 2016
2. In this Writ Petition, the petitioner which is a company
incorporated under the Companies Act and engaged in business of
construction and sale of immovable property, has challenged order in
Proceedings No.C/2835/2013 dt.13.11.2015 passed by Tahsildar,
Tirumalagiri Mandal, Hyderabad District (4th respondent) under
Section 7 of the A.P. Land Encroachment Act, 1905 which was also
confirmed in Appeal under Section 10 of the said Act by the Revenue
Divisional Officer, Secunderabad Division, Hyderabad (3rd
respondent) in Proceeding No.B/3701/2015 dt.13.02.2016.
3. The 1st respondent in the writ petition is the State of Telangana
and the 2nd respondent is the District Collector, Hyderabad District.
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Background facts
4. The petitioner company had obtained a Development
Agreement-cum-General Power of Attorney from legal heirs of late
S.K.Heeralal and others vide registered documents Nos.2709 of 2006
dt.28.12.2006 and Document No.2286 of 2006 dt.16.12.2006 in
respect of Ac.40.00 in Sy.Nos.1 and 2 of Lothkunta Village,
Malkajgiri Mandal, Ranga Reddy District.
5. It is the case of the petitioner that executants of the said
documents are owners and possessors of Ac.59.05 gts. in the said
village and that they obtained title to the said property through one
Lateefunnisa Begum, W/o Syed Hazmatullah Saheb.
6. It is their case that she had sold the said land to Seth Kishanram
Gowli under a registered sale deed Document No.2230 of 1955
dt.10.12.1955 and that the purchaser's name was mutated in the
Revenue record as Pattedar and possessor of Ac.29.30 gts. in Sy.No.1
and Ac.29.25 gts. in Sy.No.2, total Ac.59.05 gts. in Lothkunta Village.
7. According to them, a portion of the said land of extent Ac.5.10
gts. was acquired under the Land Acquisition Act, 1894 and an award
under Section 11 of the said Act was passed on 17.05.1985 in favour
of Seth Kishanram Gowli. They also contend that ACs.0-05 gts. 29 sq.
mts was acquired under the Land Acquisition Act, 1894 by the
Hyderabad Metro Water Works out of the above land of Ac.59.05 gts.
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and an award was passed under Section 11 of the said Act on
24.06.1989 in favour of Seth Kishanram Gowli.
8. They contend that this land of Ac.59.05 gts. in Sy.Nos.1 and 2
of LothkuntaVillage, Malkajgiri Mandal, Ranga Reddy District is
private patta land; that the Secunderabad Cantonment Board had also
sanctioned a layout on 04.07.2008 for Ac.40.00 in the said land and
that they had paid Rs.53,25,000/- to the said Board towards
development charges.
The notice under Section 7 of the A.P. Land Encroachment Act, 1905 issued to the petitioner by the 4th respondent
9. Alleging that petitioners are encroaching Ac.40.00 gts. of
Government of land falling under GLR Sy.No.243 (corresponding to
old Sy.No.196) of Tirumalagiri Village and Mandal, Hyderabad
District, the 4th respondent issued a notice to the petitioner on
01.11.2013.
Petitioner's reply dt.04.12.2013 to the notice
10. Petitioner gave a reply dt.04.12.2013 to the said notice inter
alia contending that the subject land is Sy.Nos.1 and 2 of Lothkunta
Village, Malkajgiri Mandal, Ranga Reddy District; and even assuming
that any action under provisions of the Act is required to be taken
against it, only the Tahsildar, Malkajgiri is the competent authority
and not the 4th respondent, the Tahsildar, Tirumalagiri Mandal,
Hyderabad District .
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11. It was also contended that the land is private land, that a part of
it was also acquired for the South Central Railway and the Metro
Water Works, and the contention of the 4th respondent that the subject
land belongs to the Government, is incorrect.
First order dt.05.12.2013 in proceedings C/2835/2013 passed by 4th respondent
12. On 05.12.2013, the 4th respondent passed an order in
Proceedings C/2835/2013 directing eviction of petitioner without even
adverting to petitioner's contentions on the question of jurisdiction of
the 4th respondent as well as the contention with respect to acquisition
of part of the land for the purpose of laying broadguage line by the
South Central Railways.
Order dt.15.04.2014 in W.P.No.35953 of 2013
13. Petitioner questioned the order dt.05.12.2013 in proceeding
No.C/2835/2013 passed by the 4th respondent under Section 6 of the
Act by filing W.P.No.35953 of 2013.
14. On 10.12.2013, an interim order was granted by the High Court
suspending the said order subject to the condition that the petitioner
should not raise further constructions over the disputed land.
15. Ultimately the said Writ Petition was allowed on 15.04.2014
setting aside the order dt.05.12.2013 passed by the 4th respondent in
proceedings No.C/2835/2013 under Section 6 of the Act, and the
matter was remitted back to the 4th respondent for fresh consideration.
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He was directed to consider the reply filed by the petitioner to the
notice under Section 7 of the Act and pass a fresh order under Section
6 of the Act in accordance with law. The Court observed that if any
development of layout is undertaken by the petitioner in the
interregnum, it is at the risk of the petitioner and at its cost, and it
should not claim equities on that ground.
The second order dt.13.11.2015 of the 4th respondent under Section 6 of the Act after remand by the High Court
16. Thereafter a fresh order was passed on 13.11.2015 by the 4th
respondent again rejecting the petitioner's claim.
17. After referring to the petitioner's contention that the subject
land is located in Lothkunta Village, Malkajgiri Mandal, Ranga
Reddy District and does not form part of Tirumalagiri Mandal, and the
claim of the Government that it forms part of GLR No.243 of
Tirumalagiri Village, the 4th respondent observed that the petitioner
had constructed a watchman room in the subject land and invited
proceedings under the Act, and that there was a decision of the Wakf
Tribunal on 05.08.2010 in a dispute between the Wakf Board and the
State Government that land in GLR Sy.No.243 is State Government
land and it has ownership rights.
18. He also held that a joint survey was held by (i) the Deputy
Director, Urban, Hyderabad, (ii) Regional Deputy Director,
Hyderabad, (iii)Tahsildar, Tirumalagiri, (iv) Tahsildar, Malkajgiri,
(v) Inspector of Survey, Hyderabad,(vi) Deputy Inspector of Survey MSR,J ::8:: wp_5049_2016 & cma_524_2020
of Chevella, Ranga Reddy District, and (vii) Mandal Surveyors of
Tirumalagiri and Malkajgiri Mandals; that the said survey team
localized the land in GLR No.243 and also submitted a report along
with a sketch on 14.03.2013 concluding that GLR Sy.No.243 is not
part of any adjacent village of Malkajgiri Mandal of Ranga Reddy
District.
19. He also held that the Assistant Director, Survey and Land
Records had given a letter Rc.No.A2/3117/2015 dt.09.09.2015 stating
that the Village Map, Classer Register, Sethwar and Tippons of
Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga
Reddy District were not available in his office as per verification of
the survey records.
20. He then went on to say that localization of land in any Survey
number can be done based on survey records and survey maps and in
the absence of such record, it is not possible to find out where the land
belonging to that survey number falls/or is located on the ground; and
therefore the claim of the petitioner that the land in question is part
and parcel of Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri
Mandal, Ranga Reddy District, is not tenable.
21. Reference is also made to contents of a file bearing
No.D1/4113/2002 dt.06.02.2006 obtained under the Right to
Information Act, 2005 from the Collectorate, Ranga Reddy District
which was filed by the petitioner and it is stated that even the said file MSR,J ::9:: wp_5049_2016 & cma_524_2020
confirms that there was no Survey and Settlement record available for
Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga
Reddy District.
22. According to the 4th respondent, the joint survey report
dt.14.03.2013 reveals that land in GLR 243 had nothing to do with
Malkajgiri Mandal of Ranga Reddy District; pahanies for Sy.Nos.1
and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District
were not being written from 1995 onwards; the land acquisition
proceedings were initiated on the basis of misrepresentation of facts
by the claimants therein; and there is no estoppel to Government
claims.
According to him, the Sethwar obtained from the State
Archives by the petitioner contains entries, but it is a fabricated
document and it did not disclose the source from which it was
obtained; that there is no stamp put by the State Archives Department
on it, that it did not contain signatures; and the document
dt.10.12.1955 of Syed Lateefunnisa Begum does not help the
petitioner because it refers to payment of money in Osmania Sikka
though the Indian currency of Rupee had come into vogue by then.
Even pattadar passbook produced by the petitioner does not
contain any seal and stamp and is a created document; and the several
pahanies produced by the petitioner of Malkajgiri Mandal of Ranga MSR,J ::10:: wp_5049_2016 & cma_524_2020
Reddy District have no meaning in the absence of corresponding
survey record.
23. Referring to a sketch appended to the Land Acquisition
proceedings initiated by the South Central Railways in F/232/85
dt.24.06.1989, the 4th respondent held that it did not reveal on basis of
what survey record the survey map was prepared; and it could not
have been prepared because there was no survey and settlement record
of Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga
Reddy District.
24. He also referred to non-filing of declaration by petitioner under
Section 6(1) of the Urban Land Ceiling Act, 1976.
25. He thus held that the petitioner was in illegal occupation of
Ac.40.00 in GLR 243 and was liable to be evicted under Section 6 of
the Act.
W.P.No.37198 of 2015
26. Petitioner questioned the order dt.13.11.2015 in proceedings
No.C/2835/2013 passed by the 4th respondent under Section 6 of the
Act in W.P.No.37198 of 2015 in this Court.
27. On the date when the Writ Petition came up for admission, the
Government Pleader for Revenue produced a panchanama contending
that they have already taken possession of the Ac.40.00 gts. in GLR MSR,J ::11:: wp_5049_2016 & cma_524_2020
No.243 and that this land falls in Tirumalagiri Mandal of Hyderabad
District.
28. On 16.11.2015, the said Writ Petition was disposed of by this
Court permitting the petitioner to avail appellate remedy under
Section 10 of the Act to challenge the order dt.13.11.2015 passed by
the 4th respondent. The order dt.13.11.2015 of the 4th respondent was
stayed for a period of 4 weeks and the petitioner was directed to seek
further orders from the appellate authority in the appeal. This Court
also directed that possession of the land said to have been taken by the
4th respondent under the panchanama shall be redelivered to the
petitioner subject to the condition that it shall not alienate or alter it. It
was made clear that this arrangement is subject to further orders of the
appellate authority.
The Appeal filed by the petitioner before the 3rd respondent
29. Petitioner then filed an appeal before the Revenue Divisional
Officer, Secunderabad Division (3rd respondent) under Section 10 of
the Act against the order dt.13.11.2015 in file No.C/2835/2013 passed
by the 4th respondent.
30. The said Appeal was numbered as proceeding No.B/3701/2015
and was dismissed on 13.02.2016.
31. The 3rd respondent appellate authority held that an extent of
Ac.119.34 gts. comprising GLR Sy.No.243 is recorded as
Government land; that GLR is the General Land Register and is MSR,J ::12:: wp_5049_2016 & cma_524_2020
maintained by the Cantonment Board under the Cantonment Act,
1924; that the said Register is a public document and certified copies
of it are admissible under Section 65 read with Section 74 of the
Evidence Act, 1872. He also relied on the decisions in Chief
Executive Officer v. Surendra Kumar Vakil1 and Union of India v.
Kamla Varma2 and observed that entries in the General Land
Register maintained under the Cantonment Land Administration
Rules are conclusive evidence of title.
32. He then referred to the conduct of joint survey by the Joint
Survey team referred to by the 4th respondent in his order
dt.13.11.2015 and the sketch dt.14.03.2013 of such joint survey and
concluded that GLR survey number is not part of Malkajgiri Mandal
of Ranga Reddy District.
33. He also relied on the Letter dt.09.09.2015 of the Assistant
Director, Survey and Land Records that there were no Village Map,
Classer Register, Sethwar and Tippons in Sy.Nos.1 and 2 of
Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District.
34. He then practically copied the entire order of the 4th respondent
in almost all respects and concluded that petitioner failed to establish
its claim that the property in question forms part of Sy.Nos.1 and 2 of
Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District and that
the 4th respondent had jurisdiction to evict the petitioner from the land
1 (1999) 3 SCC 555 2 (2010) 13 SCC 511 MSR,J ::13:: wp_5049_2016 & cma_524_2020
in question. He also distinguished the judgment of the Supreme Court
in Government of A.P. v. Tummala Krishna Rao3 cited by the
petitioner's counsel.
The instant Writ Petition
35. Assailing the same, petitioner filed the instant Writ Petition.
Contentions of petitioner
36. The counsel for petitioner raised the following contentions:
(a) According to the petitioner, having regard to the material
filed by the petitioner before the respondents 3 and 4, the very
initiation of proceedings under the Act by the 4th respondent and its
confirmation in Appeal by the 3rd respondent is without jurisdiction
and contrary to the decision of the Supreme Court in Tummala
Krishna Rao (3 supra).
(b) It is contended that petitioner and his predecessor-in-title
were in long standing possession; that there was a title dispute as well
as a boundary dispute; that petitioner's claim is based on registered
sale deed dt.10.12.1955 in favour of his predecessor Seth Kishan Ram
Gowli by Smt. Lateefunnisa Begum and petitioner's predecessor had
possession as per the Revenue records; that they showed that the
subject land was in Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri
Mandal, Ranga Reddy District; and this material was ignored by
respondents 3 and 4.
3
(1982) 2 SCC 134
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(c) He also contended that portions of the subject land were
twice acquired under the Land Acquisition Act, 1894 and awards were
passed on 17.05.1985 and 24.06.1989 for payment of compensation to
petitioner's predecessor for laying a Railway track and also a Water
pipeline; that up to 1990, Malkajagiri Mandal maintained Revenue
records in respect of Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri
Mandal, Ranga Reddy District; that respondents do not have any
document to show that land belongs to the Government and have not
furnished any such documents to the petitioner.
(d) Most importantly reliance is placed by the petitioner on the
Note File obtained under the Right to Information Act, 2005 i.e. File
bearing No.D1/4113/2002 dt.06.02.2006 issued by the Collectorate,
Ranga Reddy District.
(e) According to the petitioner, a reading of the File proves that
pahanies of Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal,
Ranga Reddy District were prepared up to 1996 - 97; that as per a
report of RDO, Chevella, dt.31.10.2002, the lands in Sy.Nos.1 and 2
of Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District are
patta lands out of which Ac.5.10 gts. was acquired for Railway line
and compensation was also paid; that further land was also acquired
for laying a pipeline for the Metro Water Works Board; that the
Lothkunta Village had a separate pahani with Sy.No.1 of extent
Ac.29.30 gts. and Sy.No.2 with Ac.29.15 extent totaling Ac.59.05; but
clandestinely, without any statutory proceeding and without notice to MSR,J ::15:: wp_5049_2016 & cma_524_2020
anybody including the predecessor-in-title of the petitioner, the said
land was merged with the GLR 243 survey number in the
neighbouring Tirumalagiri Mandal by the Revenue Officials.
(f) Counsel for the petitioner also referred to the Gazette
Notification No.14 issued vide G.O.Ms.No.508, Revenue (Mandals-II)
Department, dt.16.05.1985 issued under the A.P.Districts (Formation)
Act,1974 showing the existence of Lothkunta Village in Malkajgiri
Mandal.
(g) He also referred to the contents of the award
No.C1/3088/77/5/85 dt.17.05.1985 of the Special Deputy Collector,
Land Acquisition (General), Hyderabad in relation to acquisition of
land in Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal,
Ranga Reddy District, wherein it is recorded that "Lothkunta entire
Revenue Village consists only two survey numbers, i.e. 1 and 2 and
the acquisition is from both survey numbers. This village is in between
the Malkajgiri, Tirumalagiri, Alwal Cantonment and adjacent to
Ammuguda Village Railway Station. The land under acquisition is
very close to Ammuguda Railway Station and contiguous to the
bypass broad gauge line commencing from Malkajgiri Village
Sy.No.211 which is also under acquisition."
(h) Counsel contends that this record and the sketch prepared at
the time of acquisition of land for the said purpose by the Revenue MSR,J ::16:: wp_5049_2016 & cma_524_2020
officials was simply rejected saying that the acquisition itself was
done on the basis of a misrepresentation;
(i) the Revenue and Survey Departments of the State, which
ought to have custody of the records of Lothkunta Village such as
Village Map, Classer Register, Sethwar and Tippons in Sy.Nos.1 and
2 of Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District, had
suppressed the same by obtaining a certificate from the Assistant
Director, Survey and Land Records dt.09.09.2015 saying that they are
not available with him; and the State cannot take advantage of such
suppression of record by its officials and claim that the subject land is
not there in Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal,
Ranga Reddy District and that it is in GLR 243 of Tirumalagiri
Village and Mandal.
(j) According to counsel for petitioner, the State cannot be
allowed to take advantage of its own wrong in suppressing relevant
record, and clandestinely merging land in Sy.Nos.1 and 2 of
Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District in the
neighbouring Tirumalagiri Village and Mandal without any statutory
proceeding and without any notice to affected parties and seek to rely
on the entry clandestinely made in the GLR Register of the
Cantonment Board.
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Contentions of the Respondents:
37. Sri Harendra Pershad, the Special Government Pleader attached
to the Office of the Advocate General appearing for the respondents
refuted the above contentions. He referred to the counter affidavit of
Revenue Divisional Officer, Secunderabad Division (3rd respondent)
and contended as under:
(a) that the Development Agreement cum GPA executed by the legal
heirs of S.K. Heera Lal and others on 28.12.2006 under the two
registered documents 2709 of 2006 and 2286 of 2006 in respect of
land admeasuring Ac.40.00 gts. in Sy.Nos.1 and 2 of Lothkunta
Village, Malkajgiri Mandal, Ranga Reddy District is a stale and void
document; that they have no right to deal with the said property in any
manner; that they are the owners and possessors of Ac.59.05 gts. in
Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga
Reddy District is false and incorrect.
(b) It is denied that the revenue records, including Sethwar And
Khasra Pahani disclose the name of Lateefunnisa Begum as pattedar
of the land and it is also denied that she sold this property to Seth
Kishan Ram Gowli through registered sale deed dated 10.12.1955 and
by virtue thereof the name of the latter was mutated in the revenue
records as pattedar and possessor of the land. According to the 3rd
respondent Lateefunnsa Begum did not purchase the subject property
in a public auction and she had no right over the property which she MSR,J ::18:: wp_5049_2016 & cma_524_2020
could convey to Seth Kishan Ram Gowli under the sale deed dated
10.12.1955.
(c) According to 3rd respondent, even the said sale deed is a
stale and void document and was created with a view to set up false
claim over government land. It is asserted that the Jamabandi sethwar
produced by petitioner is a fake document and no such document was
ever prepared by the survey authorities.
(d) It is submitted that the subject property admeasuring
Ac.40.00 gts. is a Government Land and the same is covered by GLR
(General Land Register) Sy.No.243 of Cantonment area of
Tirumalgiri Mandal, Hyderabad District. As per the said General
Land Register Sy.No.243 admeasuring Ac.119.34 gts. is recorded as a
Government Property and under the management of the Government.
The State Government is the owner of the said GLR Sy.NO.243.
Hence, the contention that the subject property falls in Sy.No.1 an 2 of
Lothkunta Village and that the same is a private patta land, is false
and baseless.
(e) Practically the contents of the orders passed by the 3rd and 4th
respondents are then extracted in the counter affidavit.
(f) It is then contended that the 3rd and 4th respondents had considered
all the material and documents produced by the petitioner in support
of its claim, that their orders are well reasoned and in accordance with
law.
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(g) It is contended that the claim of the petitioners is based on bogus
documents in respect of non-existing survey numbers as per survey
records. It is contended that the subject land was taken possession by
the respondents since there was no stay granted by the "superior
authority".
POINTS FOR CONSIDERATION:
38. On the basis of the above contentions, the following points arise
for consideration:
(i) Whether Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District were in existence at any point of time or whether, as contended by the respondents, there were never such survey numbers in existence?
(ii) If Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District are in existence, whether the land claimed by the petitioner is located in the said survey numbers or in GLR Survey No.243 of Tirumalagiri village and Mandal of Hyderabad District?
(iii)Whether the 4th respondent could have initiated proceedings under the A.P. Land Encroachment Act, 1905 against the petitioner?
(iv) Whether the orders passed by the 3rd and 4th respondents under the said Act warrant any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India?
CONSIDERATION BY THE COURT:
Point No.(i):
39. I shall first consider point No.(i) which is as under:
"Whether Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District were in existence at any point of MSR,J ::20:: wp_5049_2016 & cma_524_2020
time or whether, as contended by the respondents, there were never such survey numbers in existence?"
40. This issue assumes importance having regard to the plea of the
petitioners that the land for which Development Agreement cum GPA
was obtained by them on 28.12.2006 is land admeasuring Acs.40.00
gts. in Sy. Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal,
Ranga Reddy District. The respondents contend that these are bogus
survey numbers and there was no such land at all.
41. The existence of Lothkunta village is proved by the petitioner
by filing Gazette Notification No.14 issued publishing
G.O.Ms.No.508 Revenue (Mandals-II) Department, dt. 16.05.1985
forming Malkajgiri Mandal in Ranga Reddy District in exercise of
powers conferred on the State Government by sub Section (1) of
Section 3, sub-Section (2) of Section 3 of the Andhra Pradesh
Districts (Formation) Act, 1974 read with sub-Section (6) of that
Section. The said notification discloses the creation of Malkajgiri
Mandal and mentions 12 villages falling in the said Mandal and
Lothkunta village is one such village mentioned at Sl.No.8 of the said
Gazette notification located in Vallabhnagar Taluq and Chevella
Revenue Division of Ranga Reddy District.
42. Sri Harendra Pershad, Special Government Pleader appearing
for the Advocate General representing the respondents does not
dispute the above notification which created Malkajgiri Mandal
containing Lothkunta village.
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43. He sought to point out another notification G.O.Ms.No.1048 dt.
17.12.1996 published in the Gazette on 27.12.1996 under the Andhra
Pradesh Districts (Formation) Act, 1974 constituting Tirumalgiri
Mandal and other Mandals wherein according to him villages of
Tirumalgiri, Ammuguda (Cantonment Area) etc., and certain villages
were included in Tirumalgiri Mandal.
44. But this does not help the respondents because this later Gazette
notification does not show that Lothkunta village is included in
Tirumalgiri Mandal.
45. I shall now refer to the note file No.D/4113/2002 obtained
under the Right to Information Act, 2005 from the Collectorate of
Ranga Reddy District vide proceedings Memo No.D5/3543/2015-7,
dated 11.08.2015.
46. This file specifically refers to land in Sy.Nos.1 and 2 of
Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District and the
authenticity of this record is not doubted by the Special Government
Pleader appearing for respondents.
47. The Note file begins with reference allegedly made by the
Mandal Revenue Officer, Malkajgiri to the Mandal Revenue Officer,
Tirumalgiri and the Defence Estates Officer in June, 2002 vie letter
No.B/1505/2002 dated 18.06.2002 and it appears that a doubt was
expressed by the former to the latter to verify their records as to MSR,J ::22:: wp_5049_2016 & cma_524_2020
whether land in Sy.Nos.1 and 2 of Lothkunta Village were transferred
to them. It is then stated as under:
"In this regard the MRO, Tirumalgiri informed that the said lands do not fall in their Mandal and no records are being maintained. The Defence Estate Officer has reported that the lands in Sy.Nos.1 and 2 of Lothukunta Village fall in part of GLR Sy.No.255, 243 and entire part of GLR Sy.No.244, 245, 246 and the said lands are recorded as part of Alwal and Malkajgiri. The land is recorded as State Government and the nature of holders right is shown as proprietory".
(emphasis supplied)
48. The above passage suggests that according to the Mandal
Revenue Officer, Tirumalgiri, the land in Sy.Nos.1 and 2 of Lothkunta
village does not fall in Tirumalgiri Mandal. Even the statement of the
Defence Estate Officer that they fall in part of GLR Sy.No.255 and
243 and that they are recorded as part of Alwal and Malkajgiri,
indicates that they are not falling in Tirumalgiri Mandal.
49. The next sentence that "land is recorded as State Government
and the nature of the holders right is shown as proprietory" is
contradicted by the following paragraph immediately appearing below
the above passage:
"As per Pahani 1995-96 there are only two survey numbers in Lothkunta village as under:
"Sy.No. Extent Classification Pattadar
1 24-30 Patta Sethi Kishan Ram Gowli
1/A 5-00 " Chaya Co-op Housing Society
2 24-15 " Sethu Kishan Ram Gowli
2/A 5-00 " Chaya Co-op Housing Society"
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50. Thus, the existence of patta land in Sy.No.1 and 2 of
Lothkunta village in the name of Sethu Kishan Ram Gowli
admeasuring Ac.59.05 gts. is corroborated by this record.
51. The File then goes on to discuss why pahanis from 1995
onwards for Sy.Nos.1 and 2 of Lothkunta village were not prepared
by Mandal Revenue Officer,Malkajgiri Mandal.
52. But the most important thing to be noted is that the said File
does not say anywhere that pahanis prior to 1995 are not available.
The counter affidavit of the 3rd respondent is also silent on this aspect.
In my opinion, the pahanis of Sy.Nos.1 and 2 of Lothkunta village for
the period prior to 1995 were available with the respondents, but they
deliberately chose to suppress them because if they are produced it
would go against their plea that Sy.Nos.1 and 2 of Lothkunta village
are bogus survey numbers.
53. Again the following passages are found in the File which prove
beyond doubt the existence of Sy.No.1 and 2 of Lothkunta village and
the fact that the said lands are patta lands:
"Para 27: As per the report of RDO, Chevella, the lands in Sy.Nos.1 and 2 are patta lands out of which.5.10 Acs. were acquired for railway line and compensation was also paid in SDC LA (GEN) File No.C/3088/77.
Para 33: Inspected the land.
1)....
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2) The land surrounding this two survey nos.1 and 2 of Lothkunta (which is total land of Lothkunta) is completely owned by Defence (Cantonment).
Para 39: In view of the above, the above land acquisition files pertain to the land bearing Sy.Nos.1 and 2 of Lothkunta village acquired for laying railway double line and pipeline may be obtained from this office record section if agreed.
Para 44: As seen from the file E2/6982/86 which pertains to land acquired for laying 1100 mm dia-PSC gravity main from Alwal to Moulali. The DN proposals approved by the Government vide G.O.Rt.No.385 M.A., Dt.13.04.87, has been got published in respect of land Sy.No.1 of Lothkunta Village H/o. Alwal, Malkajgiri Mandal for an extent of 00.05 guntas 22 Sq. Mtrs and the name of the reputed owner or occupier show as Shetu Kishan Ram Gowli s/o.Bheeman Gowli. The subsequent file is not traced out in the record room.
As seen the file No.G2/3625/2000, wherein a copy of Award in respect of land bearing Sy.No.1 and 2 of Lothkunta village for an extent Ac.5- 10 guntas, acquired for laying bye-pass new broad gauge railway line from Sanathnagar to Moulali, passed by the Special Dy.Collector L.A. (General), Hyderabad vide No.C1/3088/77/5/85, dt.17.05.1985 is available and also seen from the award at page No.7 at last para, it is mentioned that "No other person ahs preferred the claim over the said land Sri C. Kishan Ram Gowli S/o.Kheman Gowli alone is the absolute owner and rightful person to get the entire compensation payable for the said land accordingly order for payment of compensation amounting to Rs.8,87,013,70/- to Sri C. Kishan Ram Gowli S/o.Kheman Gowli."(emphasis supplied)
54. Even thereafter at para 57 of the File it is recorded as under:
"Para 57: As per the endorsement of the Joint Collector on pre-page, it is
submitted that Lothkunta village is having a separate Pahani with two survey
numbers as below:
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Survey No. Extent
1 29-30
2 29-15
Total 59-05 Acres"
55. The above referred material contained in the said file thus
proves not only the existence of Sy.Nos.1 and 2 of Lothkunta
village, but also the fact that they were patta lands of which
certain portion was acquired for laying railway line and also a
pipeline and compensation was paid to Sethu Kishan Ram Gowli.
56. The petitioner has filed copy of the Award No.C1/3088/77
dated 17.05.1985 passed under Section 11 of the Land Acquisition
Act, 1894 by the Special Deputy Collector (LA) (General), Hyderabad
District in regard to the acquisition of Ac.5.10 guntas for purpose of
laying a bye-pass new broad gauge railway line from Sanathnagar to
Moulali which involved acquisition of Ac.5.10 guntas in Sy.No.1 and
2 of Lothkunta village and also the topo sketch prepared by the
Revenue and Survey officials showing the railway line passing
through the above land in Sy.Nos.1 and 2 Lothkunta village. In the
Award also, the Special Deputy Collector records as under:
"The lands under acquisition are in Revenue Vg. Lothukunta of Vallabhnagar Tq. Lothukunta entire revenue village consists only two Sy.No.i.e. 1 and 2 and the acquisition is from both the Sy Nos. This village is in between Malkajgiri, Tirumalgiri, Alwal Cantonment and adjacent to Ammuguda Vg. Railway Station. The land under acquisition is very close to Ammuguda Rly. Station and contiguous to the bye-pass B.G. Line commencing from Malkajgiri Vg. Sy.No.211, MSR,J ::26:: wp_5049_2016 & cma_524_2020
which is also under acquisition. After the lands under acquisition, the BG. Bye pass line pass from cantonment area and proceeds to Alwal Vg."
57. Even the Award proceedings No.F/232/85, dt. 24.06.89 passed
under Section 11 of the Land Acquisition Act 1894 by the Special
Deputy Collector, Land Acqusition, Hyderabad in regard to extent of
0.05 gts 29 sq. meters or 630 sq. yards, acquired for laying 1100 mm
dia meter pipeline in Sy.Nos.1 and 2 of Lothkunta village is filed by
the petitioner.
58. While the respondents 3 and 4 simply reject the proceedings of
acquisition of the above portions of Sy.Nos.1 and 2 of Lothkunta
village on the pretext that there was misrepresentation by the land
owner Sethu Kishan Ram Gowli at that time to get compensation for
such land, the said stand cannot be countenanced because before any
land is acquired under the Land Acquisition Act, 1894 under Section 4
(2) thereof, a survey has to be done to set out boundaries of the land
proposed to be taken.
59. In the Award No.C1/3088/77 dated 17.05.85, the following is
recorded by the Special Deputy Collector (Land Acquisition),
Hyderabad:
"True Area:
The area of each Sy.No. under acquisition has been notified U/s. 4(1) and 6 of the L.A.Act, according to the requisition received from the Railway Department. Subsequently, the lands have been surveyed and sub-divided and got it attested by the Asst. Director, Survey and Land Records, Ranga Reddy District vide Lr.No.G1/LA/320/Pre/Rly/81 dt.23.2.1981. The true area of the MSR,J ::27:: wp_5049_2016 & cma_524_2020
total land under acquisition is 5 acres and 10 gts. as detailed below according to attested sub-division records.
Name of the Sy.No. Classification Proposed area Area under
Village acquisition as
Per SLR
-----------------------------------------------------------------------------------
-
Lothukunta 1 Dry 1.36 2.14
2. " 2.17 2. 36
---------------------------------------
Total 4.13 5.10
----------------------------------------- Thus, the total area of the land under acquisition is 5 acres and 10 gts. The attested Sub-division Records including site plan are available in this office."
60. Likewise, in the Award dated 24.06.1989 passed by the Special
Deputy Collector, Land Acquisition, Hyderabad, also the following is
observed:
"True Area:
The land proposed for acquisition was got measured and surveyed by the survey staff of this office and prepared the sub divisons records. The Asst. Director, Survey and Land Records -Ranga Reddy District has verified the sub-division records prepared by the survey staff of this office and attested vide his office Lr.No.G6/4525/85 dt.24.2.1985. According to the sub-division records prepared and attested the land prepared for acquisition is passing through S.No.1 of Lothkunta (village) and an extent measuring ACs.0-05 gts. 29 sq. mts is affected due to Acquisition. Accordingly the Draft Notification U/s.4 (1) and Draft Declaration U/s. 6 of the L.A. Act have get been notified. Hence, the area notified is adopted for passing the Award." (emphasis supplied)
61. The Award for acquisition of land for railway line having been
passed in 1985 and the Award for acquisition of land for laying MSR,J ::28:: wp_5049_2016 & cma_524_2020
pipeline having been passed in 1989, after survey by the survey
authorities of the then Government of Andhra Pradesh on the basis of
survey records existing at that time, and the same cannot be simply
dismissed by the respondents as having been procured by
misrepresentation of facts. The contention of the respondents that the
sketch prepared at the time of such Land Acquisition did not reveal on
basis of what survey record the survey map was prepared and it could
not have been prepared because there was no survey and settlement
record of Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal,
Ranga Reddy District, is patently false.
62. The doctrine of estoppel certainly applies to the respondents
and they cannot disown that not only Sy.No.1 and 2 of Lothkunta
village existed, the land therein is patta land and not Government
land.
63. Such survey records which were clearly available at the time of
passing of the above awards in the office of the Assistant Director,
Survey Land Records of Ranga Reddy District in 1985 and 1989
cannot simply disappear, and the respondents 3 and 4 cannot simply
put across the letter Rc.No.A2/3117/2015, dated 9.9.2015 of the
Assistant Director, Survey and Land Records that Village Map,
Classer Register, Sethwar and Tippons of Sy.nos.1 and 2 of Lothkunta
of Malkajgiri Mandal are not available in his office, and so the said
land itself never existed.
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64. No explanation is forthcoming from the Special Government
Pleader, how such records which were in existence at the time of land
acquisition in 1985 and 1989, and which were in the custody of the
Survey department, conveniently vanished subsequently. As
custodian of such records, the State cannot take advantage of their
disappearance and harass subsequent transferees of land by
contending that such land never existed because in the absence of
such record , it is not possible to verify the claim of petitioner and his
predecessors.
65. In my considered opinion the said records appear to have been
suppressed by the respondents and an adverse inference has to be
drawn against the respondents that if they are produced, they would
not support their case.
66. Pahanies of 1958-59, 1972-73, 1973-74, 1974-75, 1976-77,
1989-90, 1994-95, 1999-2000, 1992-93 and Chow Fasla of Lothkunta
village filed by the petitioner also prove the existence of Lothkunta
Village with Sy.Nos.1 and 2, and that it is private land shown to be
owned by Sethu Kishan Ram Gowli.
67. I am of the opinion that, by selectively extracting passages from
the Note File D1/4113/2002 obtained from the Collectorate Office of
Ranga Reddy under the Right to Information Act 2005 which was
filed by petitioner and ignoring/omitting reference to the passages
from the said file extracted above in their respective orders, the MSR,J ::30:: wp_5049_2016 & cma_524_2020
respondents 3 and 4 have tried to give a misleading impression that
Sy.No.1 and 2 of Lothkunta Village does not exist and that petitioner
is infact, encroaching into land in GLR Sy.No.243 of Tirumalgiri
Village.
68. Accordingly, I hold on Point No.(i) that Sy.Nos.1 and 2 of
Lothkunta village in Malkajgiri Mandal of Ranga Reddy District
existed and the stand of the respondents that they are bogus survey
numbers, is contrary to record, and cannot be accepted.
Point No.(ii):
69. Now, I shall consider the question:
"(ii) If Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District are in existence, whether the land claimed by the petitioner is located in the said survey numbers or in GLR Survey No.243 of Tirumalagiri village and Mandal of Hyderabad District?"
70. I have already held on Point No.(i) that Sy.No.1 and 2 of
Lothkunta Village exist in Malkajgiri Mandal of Ranga Reddy District
and are of extent Ac.59.05 guntas; that the said land belonged to Sethu
Kishan Ram Gowli as per the record of the District Collectorate,
Ranga Reddy; that portions of the said land were acquired for Railway
Line and Pipeline, and awards under the Land Acquisition Act,1894
were passed by the Special Deputy Collector, Land Acquisition,
Hyderabad.
71. According to the petitioner, this land originally belonged to
Jagir of Shivraj Bahadur, that there was a public auction of Ac.56.24 MSR,J ::31:: wp_5049_2016 & cma_524_2020
guntas which was purchased by Lateefunnisa Begum, that she later
sold the same under registered sale deed dated 10.12.1955 to Sethu
Kishan Ram Gowli, and legal heirs of Sethu Kishan Ram Gowli had
executed a registered Development Agreement cum GPA on
16.10.2006 in favour of the petitioner for an extent of Acs.40-00 gts.
72. Layout was also applied for by petitioner from the Chief
Executive Officer of Cantonment Board which was granted on
14.07.2008 for the said land.
73. Thus, the petitioner is claiming right to develop Ac.40-00 gts.
in Sy.Nos.1 and 2 of the Lothkunta village of Malkajgiri Mandal,
Ranga Reddy District.
74. But, in the notice under Section 7 of the Andhra Pradesh Land
Encroachment Act issued on 01.11.2013 by the 4th respondent, the
allegation is that petitioner is an encroacher of Acs.40.00 gts. of
Government land allegedly falling under GLR Sy.No.243 of
Tirumalgiri Village and Mandal, Hyderabad District.
75. Essentially, thus the question is:
" where the land claimed by the petitioner is located? Is it in Sy.No.1 and 2 of Lothkunta Village of Malkajgiri Mandal of Ranga Reddy District or whether it is in GLR Sy.No.243 of Tirumalgiri Village and Mandal, Hyderabad District?"
76. Admittedly, though the Ranga Reddy District and Hyderabad
Districts are separate districts, they are adjacent to one another.
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77. While Malkajgiri Mandal is in Ranga Reddy District,
Tirumalgiri Mandal is in Hyderabad District. These two Mandals are
also adjacent to one another, though in different districts. This is clear
from the combined sketch filed by the respondents at pg.260 of the
material papers filed along with their counter affidavit.
78. I have already referred to the Gazette Notification issued under
the Andhra Pradesh Districts (Formation) Act, 1974 constituting
Malkajgiri Mandal with Lothkunta Village. This Gazette of
G.O.Ms.No.508 Revenue (Mandals-II) Department, dated 16.05.1985
is not disputed by the respondents.
79. Since petitioner contends that land in which it had obtained
development rights is located in Lothkunta village, the said land has to
fall in Malkajgiri Mandal of Ranga Reddy District only and it cannot
fall in Tirumalgiri Mandal of Hyderabad District.
80. The file D1/4113/2002 obtained from the District Collectorate,
Ranga Reddy District under the Right to Information Act, 2005 filed
by the petitioner throws considerable light on this aspect as well.
81. While the file begins by noting the statement of MRO,
Tirumalgiri at para - 1 that land in Sy.No.1 and 2 of Lothkunta village
is not in his Mandal, subsequently, at para - 53 of the same file it is
stated "the entire lands of Sy.Nos.1 and 2 of Lothkunta Village and the
vacant land on the spot which is un-surveyed is falling within the MSR,J ::33:: wp_5049_2016 & cma_524_2020
boundaries of GLR 243 and 245." The signature of the Joint Collector
appears below it.
82. At para - 54, the Joint Collector then calls for a joint survey by
the Assistant Director, Survey and land Records, Ranga Reddy
District along with officials of Defence Estate to demarcate the land
in Sy.Nos.1 and 2 of Lothkunta village on the spot.
83. Thus, the Joint Collector, without any basis and even before
any survey, determines that entire land of Sy.Nos.1 and 2 of Lothkunta
Village is falling in GLR 243 and 245 which fall in Tirumalgiri
Mandal of Hyderabad District.!! This assumption is made without any
notice to any affected party and without following any statutory
procedure.
84. At para - 58 the Joint Collector writes:
"Lothkunta village is part of GLR 243 and 255 which comprises area as below:
GLR 243 GLR 255 Total
119.34 25.24 145.18 acres
In the very next para-59, he again calls for a joint survey.
85. Thereafter, joint inspection appears to have been done by the
(i) Deputy Director, Urban, Hyderabad, (ii) Regional Deputy Director,
Hyderabad, (iii) Tahsildar, Tirumalgiri, (iv) Tahsildar, Malkajgiri,
(v) Inspectors of Survey, Hyderabad and Ranga Reddy, (vi) Deputy MSR,J ::34:: wp_5049_2016 & cma_524_2020
Inspector of Survey of Chevella and Mandal Surveyors of Tirumalgiri
and Malkajgiri Mandals on 14.03.2013.
86. It is important to note that no private party such as the
petitioner, or his predecessors in title, were given any notice of
this joint survey.
87. Moreover the said joint survey, according to the proceedings
Rc.No.A9/3594/2011 dated 26.03.2013 of the Regional Deputy
Director, Survey and Land Records, Ranga Reddy District, mentions
that demarcation of GLR No.243 of Cantonment Area was made.
88. So the desire of the Joint Collector that the joint survey should
demarcate the demarcate the land in Sy.Nos.1 and 2 of Lothkunta
village on the spot, did not materialize. There is no reference in his
findings to Sy.Nos.1 and 2 of Lothkunta village at all.
89. Thereafter, another proceeding Rc.No.A4/4066/2013 dated
03.12.2013 was issued by the Assistant Director, Survey and Land
Records, Ranga Reddy District to the Special Grade Deputy Collector
and Revenue Divisional Officer, Malkajgiri Division of Ranga Reddy
District referring to Lothkunta Village and it is stated at Sl.No.8 in a
table drawn in the said proceeding "Lothkunta name is not exist in
records".
90. It appears that the source of this brilliant scheme is the Joint
Collector, Ranga Reddy District, who mentioned at para - 53 of the MSR,J ::35:: wp_5049_2016 & cma_524_2020
note file that "the entire lands of Sy.Nos.1 and 2 of Lothkunta village
.... is falling within the boundary of GLR 243 and 245".
91. The only inference possible from this record is that the Survey
and Revenue authorities of the State of Andhra Pradesh in 2013,
without any statutory proceedings and without issuing any notice to
any affected party, clandestinely and secretly merged Sy.Nos.1 and 2
of Lothkunta Village of Malkajgiri Mandal of Ranga Reddy District in
GLR 243 of Tirumalgiri Village of Hyderabad District and ultimately
concluded that "Lothkunta name does not exist in the record". They
just made Lothkunta village disappear as if by magic!
92. This they could do because Malkajgiri mandal of Ranga reddy
District is adjacent to Tirumalgiri mandal of Hyderabad District.
93. If land in Lothkunta village in a particular Mandal ( Malkajgiri)
of a particular district ( Ranga Reddy) is being merged in a different
mandal ( Tirumalgiri) of a different District ( Hyderabad) , it amounts
to altering the boundaries and extent of a District - reducing the area
of Ranga Reddy District and increasing the area of Hyderabad
District.
94. This cannot be achieved without a notification under Sec.3 of
the A.P. Districts (Formation) Act, 1974.
95. The said Section 3 states :
"3. Division of State into districts, formation of new districts and alteration of areas, boundaries or names of existing districts:--
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(1) The Government may, by notification, from time to time, for the purposes of revenue administration, divide the State into such districts with such limits as may be specified therein; and each district shall consist of such revenue divisions and each revenue division shall consist of such [Mandals] and each Mandal shall consist of such villages as the Government may, by notification from time to time, specify in this behalf.
(2) The Government may, in the interests of better administration and development of the areas, by notification, from time to time, and with effect on and from such date as may be specified therein--
(a) from a new district, revenue division [or Mandal] by separation of area from any district, revenue division, [or Mandal] or by uniting two or more districts, revenue divisions, [or Mandal]or parts thereof or by uniting any area to a district, revenue division, [or Mandal] [or Mandal] or part thereof;
(b) increase the area of any district, revenue division, [or Mandal];
(c) diminish the area of any district, revenue division [or Mandal];
(d) alter the boundaries of any district, revenue division, [orMandal];
(e) alter the name of any district, revenue division [or Mandal];
(3) The areas, boundaries and names, of the districts, revenue divisions, taluks, firks and villages in the State existing at the commencement of this Act shall be deemed to have been notified under sub-section (1) and shall continue until they are altered by the Government or the Board of Revenue, as the case may be.
(4) The Board of Revenue may, in the interests of better administration and development of the areas and subject to such MSR,J ::37:: wp_5049_2016 & cma_524_2020
rules as may be prescribed, by notification, group or amalgamate any two or more revenue villages or portions thereof so as to form a single new revenue village or divide any revenue village into two or more revenue villages, or increase or diminish the area of any revenue village, or alter the boundaries or name of any revenue village.
(5) Before issuing any notification under this section, the Government or the Board of Revenue, as the case may be, shall publish in such manner as may be prescribed, the proposals inviting objections or suggestions thereon from the persons residing within the district, revenue division [Mandal] or village who are likely to be affected thereby within such period as may be specified therein, and shall take into consideration the objections or suggestions, if any, received.
(6) Any notification under this section may contain such supplemental incidental and consequential provisions (including provisions as to adaptation and construction of laws) as the Government or the Commissioner of land Revenue] as the case may be, may deem necessary."
96. When the A.P. Districts (Formation) Act, 1974 provides for a
procedure for transfer of a particular parcel of land from one District
to another District by decreasing the area of a District and increasing
the area of another District, the above procedure is bound to be
followed by the State and it's officials. The same cannot be achieved
by any other method. The principle that "when a statute prescribes a
thing to be done in a particular way, it shall be done in that way or
not at all", would get attracted. (See J. Jayalalithaa vs. State of
Karnataka4)
4 (2014) 2 S.C.C. 401 MSR,J ::38:: wp_5049_2016 & cma_524_2020
97. The conduct on the part of the Officials of the Revenue and
Survey Departments of the State of Andhra Pradesh, whose successor
is the State of Telangana, to make disappear Lothkunta Village of
Malkajgiri Mandal of Ranga Reddy District by merging it
clandestinely without following due process in Tirumalagiri Mandal
of Hyderabad District, is reprehensible and ought to be condemned in
the strongest of terms. Rights of private parties cannot be deprived by
such methods employed by deviant officials of the State Government.
98. Therefore, point No.(ii) is answered to the effect that the land
claimed by the petitioner is no doubt located in Sy.No.1 and 2 of
Lothkunta village of Malkajgiri Mandal of Ranga Reddy District, but
the same was included, dubiously and clandestinely, by the Revenue
and Survey Officials of the then State of Andhra Pradesh, in GLR
Sy.No.243 of Tirumalgiri Village and Mandal of Hyderabad District,
without notice to any affected party, and without following due
process of law.
99. In my opinion, land of Ac.59.05 gts in Sy.Nos.1 and 2 of
Lothkunta Village ( notwithstanding that it is made to disappear from
Ranga Reddy District), because of non-compliance with the
mandatory procedure under the A.P. Districts (Formation) Act, 1974,
continues to be in the Ranga Reddy District only and does not become
part of Tirumalgiri Mandal of Hyderabad District.
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Point (iii)
100. I shall now consider Point (iii) which is as under :
"(iii) Whether the 4th respondent could have initiated proceedings
under the A.P. Land Encroachment Act, 1905 against the
petitioner?"
101. I have already held while dealing with Point (ii) that the land
claimed by the petitioner is no doubt located in Sy.No.1 and 2 of
Lothkunta village of Malkajgiri Mandal of Ranga Reddy District, but
the same was included, dubiously and clandestinely, by the Revenue
and Survey Officials in GLR Sy.No.243 of Tirumalgiri Village and
Mandal of Hyderabad District, without notice to any affected party,
and without following due process of law; and that the Ac.59.05 gts in
Sy.Nos.1 and 2 of Lothkunta Village ( notwithstanding that it is made
to disappear from Ranga Reddy District), because of non-compliance
with the mandatory procedure under the A.P. Districts (Formation)
Act, 1974, continues to be in the Ranga Reddy District only and does
not become part of Tirumalgiri Mandal of Hyderabad District.
102. In view of this finding, the Tahsildar, Tirumalgiri Mandal (4th
respondent) has no jurisdiction under the A.P. Land Encroachment
Act, 1905 to initiate proceedings against the petitioner in respect of
land of Acs.40.00 in Sy.Nos.1 and 2 of Lothkunta Village, which is
not in Tirumalgiri Mandal, but in Malkajgiri Mandal of Ranga Reddy
District.
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103. That apart, the following voluminous evidence obtained from
the State Archives and placed by the petitioner on record shows that at
least for more than 50 years, the predecessor of the petitioner i.e.,
Lateefunnisa Begum and Seth Kishan Ram Gowli and his family had
possession of Acs.40.00 in Survey Nos.1 and 2 of Lothkunta Village.
Sl.No. DATE DESCRIPTION 01. 1920-1930 Copy of auction proceedings. 02. 1933 Copy of Jamabandi recorded in the name of
Lateefunissa Begum in respect of the subject property, i.e., land admeasuring Acs.59.33 gts in Survey Nos.1 and 2 of Lothkunta Village, Ranga Reddy District (subject land) along with the translated copy.
03. 1950 Copy of Sethwar statement showing the name of Lateefunissa Begum in the possessors' column in respect of the subject property which tantamount to ownership.
04. 1954-55 Copy of Khasra Pahani showing the name of Lateefunissa Begum as the pattadar (owner) and possessor and the nature of land as Patta land.
05. 13.10.1955 Copy of permission obtained in favour of Mrs. Lateefunissa Begum from the Deputy Collector vide L.R.No.119/55, under Sections 47 and 48 of the Hyderabad Tenancy and Agricultural Act, 1950 for alienating the subject land in toto.
06. 24.10.1955 Copy of registered Special Power of Attorney bearing Document No.470 of 1955 executed by Lateefunissa Begum in favour of her husband Syed Mohammed Azmathuallah in respect of subject land along with the translated copy.
07. 10.12.1955 Copy of Sale Deed in favour of Seth Kishan Ram Gowli along with the translation.
08. 1958-1959 Copy of Pahani Pathrika for the year 1958-59 showing the name of Seth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
09. 1972-73 Copy of Pahani Patrika for the year 1972-73 showing the name of Seth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
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10. 1973-74 Copy of Pahani Patrika for the year 1973-74 showing
the name of Seth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
11. 1974-75 Copy of Pahani Patrika for the year 1974-75 showing the name of Seth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
12. 1975-76 Copy of Pahani Patrika for the year 1975-76 showing the name of Sekth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
13. 1976-77 Copy of Pahani Patrika for the year 1976-77 showing the name of Sekth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
14. 1989-90 Copy of Pahani Patrika for the year 1989-90 showing the name of Sekth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
15. 1994-95 Copy of Pahani Patrika for the year 1994-95 showing the name of Sekth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
16. 1999-2000 Copy of Pahani Patrika for the year 1999-2000 showing the name of Sekth Kishan Ram as the pattadar and possessor in respect of subject land along with translation.
17. 1980 Copy of Chow Fasla issued in the name of Seth Kishan Ram Gowli in respect of the subject land along with translated copy.
18. 09.03.1978 Copy of Draft Notification in respect of land to be acquired for the purpose of laying New B.G. Line from Sanathnagar to Moulali.
19. 02.04.1980 Copy of pattadar passbook issued to Seth Kishan Ram Gowli in respect of subject land and showing collected land cess for the years 1980 to 1983.
20. 1979-1980 Copy of the Topo Sketch of Lothkunta Village.
21. 17.05.1985 Copy of the Award passed in favour of Seth Kishan Ram Gowli vide Award Proceedings No.C1/3088/775/85 of the Office of the Special Deputy Collector (L.A.), Hyderabad District.
22. 01.10.1985 Copy of 'Podhi Plot' Survey in File No.B2/232/85
23. 01.10.1985 Copy of Statement of Sub-Division in Lothkunta MSR,J ::42:: wp_5049_2016 & cma_524_2020
Village.
24. 24.06.1989 Copy of award passed vide Award Proceedings bearing No.F/232/85 in the Office of the Special Deputy Collector.
25. 01.12.2001 Copy of the Death Certificate of Seth Ram Gowli.
104. In several decisions of the Supreme Court starting from
Thummala Krishna Rao and another (3 supra), the Supreme Court
had held that the summary remedy of eviction provided by Section 6
of the A.P. Land Encroachment Act, 1905 can be resorted to by the
Government only against persons who are in unauthorized occupation
of any land which is "the property of the Government"; to decide
whether the summary remedy can be used, what is relevant is more
the nature of the property on which the encroachment is alleged to
have been committed, and the consideration whether the claim of the
occupant is bona fide. Facts which raise a bona fide dispute of title
between the Government and the occupant must be adjudicated upon
by the ordinary Courts of Law. The summary remedy under Section 6
is not suited to resolving questions of tile. The Government cannot
decide such questions unilaterally in its own favour and evict any
person summarily on the basis of such decision. The duration of
occupation is also relevant in that a person in occupation for a long
time can be taken, prima facie, to have a bona fide claim to the
property requiring an impartial adjudication according to the
established procedure of Law.
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105. This principle was reiterated by the Supreme Court in State of
Rajasthan v. Padmavati Devi5, in the following terms :
"6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law."
106. In G. Manikyamma and others vs. Roudri Cooperative
Housing Society Limited and others6, the Supreme Court held that
in regard to lands of the State or its instrumentalities which are in
possession of squatters for long time, such summary procedure under
the A.P. Land Encroachment Act cannot be resorted to.
5 1995 Supp (2) SCC 290 6 (2014) 15 S.C.C. 197 MSR,J ::44:: wp_5049_2016 & cma_524_2020
107. In my opinion, the principle in these decisions is squarely
applicable to the instant case as well because the material on record
indicates longstanding possession of petitioner and its predecessors
for at least the last 50 years, and there is a bona fide dispute regarding
the title of the Government to the subject land and prima facie the
claim of petitioner appears to be bona fide.
108. Therefore, the respondents ought not to have resorted to the
summary remedy under Section 6 of the Act and the Government
cannot unilaterally decide title in its own favour through its employees
and evict the petitioner. It has to seek impartial adjudication
according to the established procedure of law in ordinary Courts of
Law.
109. For the aforesaid reasons, the 4th respondent had no jurisdiction
to invoke the provisions of the A.P. Land Encroachment Act,1905
against the petitioner and the 3rd respondent could not have confirmed
his order against the petitioner. Thus their orders are declared null
and void and wholly without jurisdiction.
110. The decisions in Surendra Kumar Vakil (1 supra) and Kamla
Varma (2 supra) cited by the Special Government Pleader holding
that entries in the General Land Register maintained under the
Cantonment Land Administration Rules are conclusive evidence of
title, cannot be applied to the instant case to hold that the land claimed MSR,J ::45:: wp_5049_2016 & cma_524_2020
by the petitioner is in GLR Survey No.243 in Tirumalgiri Mandal of
Hyderabad District.
111. This is because I have held that the petitioner had claimed land
in Survey Nos.1 and 2 of Lothkunta Village in Malkajgiri Mandal of
Ranga Reddy District and the respondents, clandestinely and secretly,
without following the due process of law and without issuing notice to
anybody, included the land in Lothkunta Village in Tirumalgiri
Mandal of Hyderabad District. The respondents cannot be allowed to
take advantage of their own wrong and deprive the petitioner of the
property claimed by it.
112. The observation made by respondent nos.3 and 4 that the
petitioner should have filed declaration under Section 6(1) of the
Urban Land (Ceiling and Regulation) Act, 1976 is absurd because the
petitioner did not become owner of the subject land under the
Development Agreement - cum - G.P.A on 16.12.2006 and as a
developer, he has no necessity to file it. Also the said Act stood
repealed in the State of Andhra Pradesh from 27.03.2008 by the State
Legislature adopting the Urban Land (Ceiling and Regulation) Repeal
Act, 1999, and even otherwise, no action was taken against the
petitioner before such repeal on 27.03.2008.
113. The decision dt.25.09.1997 in W.P.No.17768 of 1996 of the
Andhra Pradesh High Court rejecting the claim of Wakf Board to land
in Sy.No.196/P of Alwal Village and holding that the said land is in MSR,J ::46:: wp_5049_2016 & cma_524_2020
GLR No.243 of Tirumalgiri Mandal of Hyderabad District or the
decision dt.05.08.2010 in O.S.No.12 of 1998 filed by the Wakf Board
before the Wakf Tribunal, Hyderabad in that regard, are wholly
irrelevant because the land claimed by the petitioner is entirely
different. The petitioner or his predecessors are not parties to them
and they do not bind them.
114. The finding of the 3rd respondent that the contents of the Note
File D1/4113/2002 obtained under Right to Information Act, 2005
from the Office of the Collectorate, Ranga Reddy District does not
support the claim of the petitioner that the subject land forms part of
Survey Nos.1 and 2 of Lothkunta Village is contrary to the contents of
the said file itself, as explained above, and cannot be sustained.
115. The stand of the 3rd respondent that the regd.sale deed
Doc.No.230/1955 dt.10-12-1955 by Lateefunnissa Begum in favor of
Seth Kishan Ram Gowli and the regd. Development Agreements-
cum-GPAs dt.16.12.2006 by the legal heirs of S.K.Hiralal in favor of
the petitioner are stale and void documents, does not make any sense
and the said plea cannot be accepted. All the observations made by the
respondent nos.3 and 4 with regard to the documents produced by the
petitioner before them, and discrediting the said documents, are
hereby set aside since neither of them have any jurisdiction under the
provisions of the Act to seek to evict the petitioner from Acs.40.00 in
survey Nos. 1 and 2 of Lothkunta Village. All observations made by
respondent nos.3 and 4 regarding the title of the petitioner and its MSR,J ::47:: wp_5049_2016 & cma_524_2020
predecessors in title are also set aside for the same reason. The
finding of the respondents that the claim of petitioner is fraudulent
and the property claimed by it falls in GLR Survey No.243, is also set
aside.
116. Though the Special Government Pleader appearing for the
respondents offered to now have a survey conducted by the Revenue
and Survey Departments of the State of Telangana to identify the land
in Survey Nos.1 and 2 of Lothkunta Village, having regard to the
stand taken by all the respondents that the Village map, Classer
Register, Sethwar and Tippons of Survey Nos.1 and 2 of Lothkunta
Village of Malkajgiri Mandal are not available and that there is no
survey or revenue record, such offer, in my opinion, is an empty offer
which is not bona fide because a survey will not be possible in the
absence of such record. Therefore, this request is also rejected.
117. Accordingly,
(a) the impugned proceedings of respondent nos.3 and 4 in
Proc.No.B/3701/2015 dt.13.02.2016 & C/2835/2013,
dt.13.11.2015 under the A.P.Land Encroachment Act,1905 , are
declared as without jurisdiction, null and void and are set aside;
(b) the respondents are directed to restore possession of the
land admeasuring Acs.40.00 in Survey Nos.1 and 2 of
Lothkunta Village which the respondents claim to be in MSR,J ::48:: wp_5049_2016 & cma_524_2020
Tirumalgiri Mandal of Hyderabad District to the petitioner
within four (04) weeks as they have taken possession of the said
land from the petitioner pending the disposal of the appeal
under Section 10 of the Act by the 3rd respondent;
(c) and the respondents shall not interfere with the
possession and enjoyment of the petitioner over the said land
unless they obtain a decree from a competent civil court
declaring the State's title to the said land, and also a decree for
possession against the petitioner and his predecessors in title;
and
(d) the respondents shall also pay costs of Rs.1 lakh to the
petitioner within four (04) weeks from the date of receipt of
copy of the order.
118. It is made clear that whatever observations are made in this
order as regards the rival claims of the petitioner/it's predecessors-in-
title are only for the limited purpose of deciding this Writ Petition and
if the State approaches a Civil Court by filing a Civil Suit for
declaration of it's title and for recovery of possession, the said suit
shall be independently decided uninfluenced by observations made
herein.
C.M.A.No.524 of 2020 :
119. This CMA was tagged on to the above W.P.No.5049 of 2016
by administrative order dt.02.01.2021 of the Hon'ble Chief Justice as MSR,J ::49:: wp_5049_2016 & cma_524_2020
the subject matter of this Appeal is also the same parcel of land in
Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri Mandal, Ranga
Reddy District.
120. The Appeal is filed by the petitioner in W.P.No.5049 of 2016
challenging order dt.23.12.2020 in I.A.No.553 of 2020 in O.S.No.52
of 2020 passed by the XII Additional Chief Judge, City Civil Court,
Secunderabad.
121. The said suit had been filed by the appellant for a perpetual
injunction restraining the respondent in the CMA from interfering
with the peaceful possession and enjoyment by the appellant/plaintiff
of the above land in Sy.Nos.1 and 2 of Lothkunta Village, Malkajgiri
Mandal, Ranga Reddy District.
122. In the said suit, the appellant/plaintiff had filed I.A.No.553 of
2020 under Order XXXIX Rules 1 and 2 CPC for a temporary
injunction restraining the respondent from interfering with the alleged
peaceful possession and enjoyment of the appellant/plaintiff in respect
of the above property.
123. In the said IA, the Court below initially ordered on 02.12.2020
urgent notice and posted the matter to 09.12.2020. Since the Presiding
Officer of the Court of the XII Additional Chief Judge was on leave, it
was adjourned to 29.01.2021.
124. Grant of this adjournment was challenged by the appellant by
filing C.R.P.No.1305 of 2020.
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125. On 18.12.2020, this Court directed the Court below to decide
I.A.No.553 of 2020 on or before 07.01.2021 after hearing both sides
or even consider granting an ex parte interim order if the
circumstances so warrant.
126. Thereafter, on 23.12.2020 the Court below took up the matter
and pointed out that except one document, all the other documents
filed by the appellant/plaintiff are only photo copies and not originals.
The Court therefore called upon the appellant/plaintiff to comply with
Section 65 of the Evidence Act, 1872 in order to receive the said
photo copies of other documents.
127. Aggrieved thereby, the appellant has filed the present Appeal.
128. Though the said order passed on 23.12.2020 by the Court below
cannot be said to be an order refusing temporary injunction, which
order would have been appealable under Order XLIII Rule 1 CPC, I
am inclined to exercise powers under Article 227 of the Constitution
of India and treat this Civil Miscellaneous Appeal as a Civil Revision
and dispose it of.
129. Since there is a direction given in this order itself to the
respondents in W.P.No.5049 of 2016 to restore possession of the
above property to the appellant/plaintiff, and since the counsel for the
respondent in this CMA fairly stated that his client was promised by
the Tahsildar, Tirumalagiri Mandal that this land will be allotted to
him by way of assignment, and that he has no other independent claim MSR,J ::51:: wp_5049_2016 & cma_524_2020
to the subject property, the claim of the respondent cannot be accepted
in view of the finding that proceedings for eviction initiated against
the appellant under the A.P.Land Encroachment Act,1905 are without
jurisdiction. The Court below is directed to take note of these
developments and pass orders in I.A.No.553 of 2020 within two (2)
weeks from the date of receipt of a copy of this order.
130. Registry shall convert the CMA into a Revision under Art.227
of the Constitution of India and the said Revision is disposed of as
above. No costs.
131. As a sequel, miscellaneous petitions pending if any, in these
matters shall stand dismissed.
____________________________ M.S.RAMACHANDRA RAO, J
Date: 08-03-2021 Svv / Ndr
