HON'BLE SRI JUSTICE P.S. NARAYANA Writ Petition No.20766 of 2006 Date: 12-12-2006 Between :- S.Vasantha and another .. Petitioner And District Collector, Hyderabad District, Hyderabad And another .. Respondents HON'BLE SRI JUSTICE P.S. NARAYANA Writ Petition No.20766 of 2006 ORDER:- 1. This Court issued rule nisi on 29-9-2006 2. The counter affidavit, additional counter affidavit, additional documents and the reply affidavit also had been filed. 3. At the request of the Counsel on record, the Writ Petition is being disposed of finally. 4. The Writ Petition is filed for a Writ of Mandamus declaring the Proced.No.B/348/06 dated 27-9- 2006 of the 2nd respondent as illegal and void and consequently hold that the petitioners are entitled to deal with the property in House Nos. 10-3-113/P, 10-3- 32/9/114P, and 10-32-9/11/115P, by developing the same in accordance with the sanction plan of the Municipal Corporation of Hyderabad under permit No.51/97 in file No.0837/CSC/TPT/2003, dt.21-8-2004 and pass such other suitable orders. 5. Sri A.Ramalingeshwar Rao, the learned Counsel representing the writ petitioners had taken this Court through the contents of the affidavit filed in support of the Writ Petition, the counter affidavit, the additional counter affidavit, the reply affidavit and also pointed out the impugned order and the documents relied upon by the parties. The learned Counsel would contend that the proceeding dated 27-9-2006 in proceedings No.B/348/06 of the 2nd respondent under the provisions of the A.P.Land Encroachment Act 1905 (hereinafter, in short, referred to as ‘Act’ for the purpose of convenience) cannot be sustained. The learned Counsel had taken this Court through the elaborate reasons recorded in impugned order and would submit that virtually the 2nd respondent had made an attempt to decide the title to the property and in the light of the respective pleadings of the parties, it is clear that the predecessor-in-title and petitioners have been in possession of the property for sufficiently a long time and certain complicated questions of title also are involved and hence in view of the same, the summary proceedings initiated under the Act referred to supra cannot be sustained. The learned Counsel made elaborate submissions relating to several of the factual aspects and placed strong reliance on GOVT. OF A.P. v. T.KRISHNA RAO[1], DISTRICT COLLECTOR, RANGA REDDY DISTRICT , HYDERABAD AND OTHERS v. K.NARASING RAO AND OTHERS[2] and also an order in SMT. VIMALA MEHTA v. GOVERNMENT OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, HYDERABAD AND OTHERS [3]. 6. Per contra, the learned Government Pleader for Revenue had pointed out to the impugned order and would submit if the possession of the petitioners as such to be taken into consideration, the same is just recent. Even otherwise, the petitioners may be entitled to regularization in accordance with law but however without exhausting the said remedy, the petitioners are resorting to the present activity which would land the public at large into trouble. The learned Government Pleader for Revenue also would contend that it may be that the impugned order is not happily worded, but however, it cannot be said that the same is without jurisdiction since, inasmuch as, the petitioners are just encroachers upon the land, the provisions of the Act are attracted and hence the Writ Petition is liable to be dismissed. The learned Counsel also would contend that in a way the parties are resorting to unsustainable litigations like approaching Civil Court, withdrawing the suit and the other like proceedings and in that view of the matter on the ground of suppression of facts as well, the Writ Petition is liable to be dismissed. 7. Heard the Counsel. 8. The impugned order reads as hereunder:- PROCEEDINGS OF THE MANDAL REVENUE OFFICER, MARREDPALLY MANDAL. PRESENT:- Sri U.RAGHU RAM SHARMA Proced No.B/348/06 Dated:27-9-2006 Sub:- Land Marredpally Mandal – Illegal encroachment – Plot Nos.113, 114, 115of Sy.No.74 Marredpally village – eviction – Reg. Ref:- Directions of the Hon'ble High Court in W.P. No.15628/06. -: o0o :- ORDER In this case action has been initiated under A.P. Land Encroachment Act, 1905 eviction of Smt.Vijayalaxmi, Smt.Pentamma and Vasant from plot No.113, 114 and 115 of Nehrunagar, Marredpally where illegal construction is being carried out in the Government land admeasuring 800 sq.yards falls in Sy.No.74 of the Marredpally Paigah village. The above individuals have grabbed an extent of 800 Sq.Yards of Government land in Sy.No.74 and started illegal construction in the guise of building permission from MCH, Hyderabad. When the applicants, officials stopped the illegal construction, they have filed a Writ Petition bearing No.10791/2006 wherein the Hon'ble High Court has passed interim orders directing the parties to maintain status-quo. The said W.P. was withdrawn on 19-6-2006. Again the same the parties have filed one more Writ Petition in W.P. No.15628/2006 before the Hon'ble High Court which was disposed of on 1-8-2006 with the following direction: “Learned Counsel for the petitioners Sri Sitaram Chaparla is satisfied if the Writ Petition is disposed of with a direction that all the Executive authorities in the State, including the respondents herein, act lawfully in accordance with the Constitution and the Legislative mandate. Learned Government Pleader appearing for the respondents does not dispute the petitioners contention that the respondents are required to act in accordance with law. The Writ Petition is accordingly disposed of directing the respondents to act in accordance with law. No order as to costs.” Pursuant to the above directions the applicant herein had noticed a notice U/s.(7) of APLE Act 1905 vide file No.B/348/06. In reply to the same, on behalf of the above mentioned persons Smt.Vijaya Laxmi has filed certain documents and explanation. They are claiming the title through one P.Bhaskar Murthy who is allegedly the owner of a portion of alleged Sy.No.74/8. Sri Bhaskar Murthy is said to have purchased from one Mansab Jung who is an alleged assignee of Paigah authorities. The alleged assignments are bogus. They are also illegal. The land in Sy.No.74 is a Poramboke land and Paigah authorities have no authority to assign the same. The land which is rocky and unfit for cultivation cannot be assigned. In respect of plot 113 one Municipal Tax receipt has been produced, whereas they have obtained M.C.H. permission on 21-8-2004 various photographs taken by this office shows that land has been vacant till recently and as such the tax receipt has no validity. As far as the claim of Government is concerned, the Sy.No.74 admeasuring a total extent of 306 Ac. 15 gts., is recorded as “Sarkari Kancha Gutta” in the Pahani of 1356 Fasli. Marredpally Paigah an ex-Jagir village. After the abolition of Jagirs under Jagir Abolition regulation 1358 F, Marredpally village was merged in Diwani and vested with the Government. Nazim Atiyat has conducted inam enquiry in respect of Asman Jahi Paigah. The ex-Jagirdar (Amir-E-Paigah) Nawab Zahiryar Jung Bhadhar filed a claim petition in the said enquiry. Nazim Atiyat after conducting enquiry passed orders on 28-10-1968 escheating 106 villages to the Government. In the list appended to the orders of Nazim Atiyat, the Marredpally village is shown at Sl.No. 93. The legal representative of ex-Jagirdar filed an appeal before Board of Revenue against the said orders of Nazim Atiyat. The said appeal was also dismissed. Aggrieved by the same, the Writ Petition bearing W.P. No.3530/77 was filed before Hon'ble High Court. The W.P. was also disposed of disallowing the claim of Jagirdar in respect of Marredpally. W.A.No.289/78 filed against the same was also dismissed. The Sy.No.74 is a gut number having no sub division at all. It was ever subdivided and no supplementary sethwar was ever issued. For entire Sy.No.74 only one Tippon is available confirming the fact that the Sy.No.74 has never been subdivided. Subsequent to 1356 F, the then mischievous patwaries made certain entries in Revenue records mentioning subdivision No. in Sy.No.74 without any basis or authority and the same are under correction by the competent authority. The entire land in Sy.No.74 is a rocky land without boulders and unfit for cultivation. Further Government have appointed the then Commissioner of Land Revenue as Enquiry Officer vide G.O.Rt.No. 930 Revenue dated 21-7-1987 to cause a detailed enquiry about the status of Sy.No.74 of Marredpally village. The Commissioner after conducting a detailed enquiry made certain recommendations to the Government, holding that the land in Sy.No.74 is a Government land. Government have issued Government a memo vide 2678/Assn III (2) 87-25, Revenue, dated 10-2-1994 accepting the recommendation of one man Commission. In the year 1965-70 Town survey has been conducted in the M.C.H. limits of Marredpally village. The Sy.No.74 part which is in M.C.H. limits has been surveyed as one Block evidencing the fact that no subdivisions were existing in Sy.No.74. The entries in Pahani of 1356, F and the absence of subdivision record for various alleged subdivisions of the Sy.No.74 shows that it is a Government land beyond anybody’s doubt. They have pleaded interalia that summary proceedings cannot be initiated. Along with their explanation they have submitted a Judgment of Hon’ble Supreme Court of India in CA No.2031/1997 with 136 and 137/1978 dated 16-3-1982 in support of their contention. The said orders of Hon’ble Apex Court are applicable to the cases where the complicated question of title arise for decision. But in this case there is no dispute with regard to the title of Government. They have relied merely on the sale deeds placing total reliance on the assignment purported to be granted by the then Piga authorities in favour of one Masab Jung and the Nazim Athiyath order shows that the assignment purported be given in favour of Mansab Jung is illegal and void. The encroacher cannot claim title basing on sale deeds wherein rights are traced through one Mansab Jung, the alleged assignee. In view of the above, the above mentioned three individuals have no lawful entitlement, and their possession is illegal, hence they are liable for eviction forthwith. Notice under Section (6) of APLE Act shall be served and evicted. Sd/- Mandal Revenue Officer, Marredpally Mandal. It is stated by the writ petitioners that the first writ petitioner and two others purchased the following houses in respect of plot numbers mentioned each against the Sy.No.74/8 at situated at Nehrunagar Cooperative Housing Society Limited, East Marredpally, Secunderabad from A.S.Gopal and two others as follows:- House No. Plot No. Vendor Vendees Agreement of Sale- cum-GPA dt. 10-3-113P 10-3- 32/9/114P 10-3- 32/9/115P __ 113 114 115 A.S.Gopal R.Madhava Rao Smt.Gayatri M.Vijaya Laxmi, Monagari Pentamma & S.Vasantha 1.2.2006 It is further stated that the petitioners’ vendors purchased the said property from their vendors as follows:- House No. Plot No. Vendor Vendees Reg. Sale Deed No. & Dt. 10-3-113P 113 Niraj Singh Yadav Majoj Singh Yadav A.S.Gopal 250/1996 Dt.18.3.1996 10-3- 32/9/114P 114 Income-Tax Officer R.Madhava Rao Sale Cert. Dt.21.3.1984 10-3- 32/9/115P 115 -do- Smt.Gayatri -do- It is stated that one Ch.Rajyalakshmi was the purchaser of the property bearing House No.10-3-113P from the Income-Tax Department in the public auction held on 7-2- 1984 and she sold the same to Sri Niraj Singh Yadav and Manoj Singh Yadav under Regd. Sale dt.6-7-1991 and thus the entire property originally belonged to one P.Bhaksara Murthy, who was a defaulter under Income- Tax Act. It is also stated that the said Bhaskara Murthy purchased an extent of 12,100 sq.yards from one Mansab Jung, S/o.Ghulam Hussain Khan under a registered sale deed dt.25-4-1959 and thus for the last nearly 50 years the petitioners predecessors in interest are the owners and possessors of the land. It is further averred that while so the vendors of the petitioners applied to the Municipal Corporation of Hyderabad for the construction of stilt + 3 upper floors for 9 residential flats, 3 flats in each floor and the same sanctioned in Permit No.51/97 in File No.03837/CSC/TPT/2003 dated 21-8-2004. It is also stated that as the vendors of the petitioners could not complete the construction with their own funds, they sold the property along with rights for construction to the petitioners and the petitioners have been constructing the residential flats with their own money. It is further stated that while so, when the 2nd respondent without any authority of law has been interfering with the petitioners’ construction stating that the said land belongs to the Government, the petitioners were constrained to file W.P. No.15628/2006 and the same was disposed of on 1-8- 2006 directing the 2nd respondent to follow the law and thereupon the 2nd respondent issued a notice under Section 7 of the Act on 24-8-2006 to which the petitioners submitted a reply on 27-8-2006. It is also further stated that the 2nd respondent, without considering the said reply properly, passed an order under Section of the Act on 27-9-2006 and directed the Deputy M.R.O., to take possession of the land along with structures and the same was taken over under a cover of panchanama on 28-9- 2006 at 7.30 p.m., without the petitioners’ presence. It is also stated that even the final order on 27-9-2006 was also not served on the petitioners and the same was affixed to the structure. It is also further averred that the said land originally belonged to one Mansab Jung, S/o.Ghulam Hussain Khan who was the absolute owner of an extent of 34 acres in Sy.No.74/8 and sold an extent of 2 ½ acres out of the said land admeasuring 12,100 sq.yards under a registered sale deed to P.Bhaskara Murthy, who became a defaulter under Income Tax Act and the property of an extent of nearly 800 sq.yards was purchased by the petitioners’ predecessors in interest in public auction on 7-2-1984 and a certificate of sale of immovable property was issued by the Tax Recovery Officer on 21-3-1984 and thus the possession and title is prima facie in their favour and the respondents have no matter of right or interest over the land. It is further stated that the order of the 2nd respondent in Proced.No.B/348/06 dt.27-9-2006 violative of the provisions of the Act and Articles 14 and 300(A) of the Constitution of India. Further it is averred that the petitioners have been constructing 9 residential flats after obtaining building permission from the Municipal Corporation of Hyderabad and the construction is nearing completion and if the respondents are allowed to interfere with such construction activity at this stage, the petitioners would suffer heavy loss. 9. Counter affidavit is filed on behalf of the respondents and the same was sworn to by the 2nd respondent – M.R.O. It is averred in para 4 of the counter affidavit that the suit schedule land admeasuring 800 square yards falls in Sy.No.74 of Marredpally village and the said Sy.No.admeasuring Ac.306.15 gts., is classified as “Kancha Gutta Sarkari” land in the Pahani for the year 1356 F. Further it is averred that after the promulgation of Hyderabad Jagir Abolition Regulation 1358 F, the said village was merged in Dewani (Government). Further it is stated that the land in Sy.No.74 which is classified as Government land is being claimed by certain private individuals purely on the abssis of pote number entries in the pahanies of the year subsequently to 1951 which had crept into, without any basis or authenticity. It is also stated that the pote number shown in the aforesaid pahanies are not supported by any subdivision rd in the Survey Department, no supplementary sethwar was issued for Sy.No.74. It is further stated that normally the entries in the Revenue Rd upto column No.1 emanate from the survey record and that such subdivision entries, which are made in the pahanies without any reference to the supplementary sethwar or phodi (demarcated subdivision by Survey Department) record, do not carry any authenticity and they will be treated as irregular. It is also stated that the then M.R.O., Secunderabad had filed a petition before District Revenue Officer Hyderabad usn 15(2) of Hyderabad Record of Rights Regulation 1358F for correction of entries in the pahanies. It is further stated that notices were issued to the interested parties. It is further stated that one of the claimants E.Bhagwan Das filed a W.P.M.P. in W.P. No.20810/94 and got interim orders dt.29-12-94 staying all further proceedings before District Revenue Officer and the said Writ Petition is still pending and hence the correction of entries in pahanies is pending for the above stated reason. It is further stated that the pote numbers for Sy.No.74 i.e., 74/1 to 74/13 have no validity and the same can be understood as being the hand-work of the Village Officers who handled the record at the time of Jagir Abolition. Further it is averred in para 9 of the counter affidavit that during the year 1964-70 Town Survey has been conducted and in the said Town Survey also no subdivisions for Sy.No.74 was done owing to the fact that it is a Government land and there were no subdivisions. It is further stated that for entire Sy.No.74 only one tippon is available in the Survey Department showing that it is a gut number. It is further stated that the village map of Marredpally (Paigah) also shows that there are no subdivisions for Sy.No.74 and hence the claim of petitioner that the suit scheduled land is part of Sy.No.74/B is factually incorrect. It is also further stated that aggrieved by the above action, the petitioner had filed this Writ Petition and by filing a W.P.M.P.No.26303/2006 they sought for a direction against the respondents to restrain them from interfering with their alleged possession and the Hon'ble High Court while disposing of the said W.P.M.P. on 29-9-2006 passed the following interim orders: “It is stated by G.P. for Revenue that possession already had been taken yesterday by virtue of a panchanama. The same is hereby recorded. In view of the facts and circumstances, status quo obtaining as on today to be maintained until further orders.” Further it is stated that the writ petitioner filed O.S.No.1135/2006 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad on 28-9-2006 for the same property i.e., a day before this Writ Petition, had been filed praying for permanent injunction and the Civil Court made an interim order on 29-9-2006 directing both the parties to maintain status-quo. Further specific stand is taken in para 12 of the counter affidavit that the sale transactions which are referred to in para 2 are not binding on the respondents as respondents are not parties to the same. It is further stated that neither Bhaskar Murthy nor Mansab Jung S/o.Gulam Hussain Khan have any right to the land in question which is classified as Government land as per pahani of 1356 F. It is also stated that there is no such subdivision No.74/8 in Sy.No.74 and the entire Sy.No. is a gut number having Ac.306.15 gts., and the tippon and the village map of Marredpally show that there is no such subdivision for Sy.No.74 of Marredpally village and hence neither of the predecessors nor the petitioners have any valid right to claim the land in question and the present petitioners cannot have any better right than their predecessors. Further specifically it is averred in para 13 of the counter affidavit that the contention of the petitioners that they were sanctioned building permission by the Municipal Corporation of Hyderabad on 21-8-2004 is untenable and the petitioners had suppressed the fact that they have filed Writ Petition No.10791/2006 wherein it was not stated that Madhava Rao and others have sold away the property to these writ petitioners and the said Writ Petition was withdrawn without mentioning proper reasons. It is also further stated that in the said Writ Petition initially status quo was ordered. It is further stated that since the interim orders of the Court were not allowing the petitioners to make further constructions and failed to vacate them, the said Writ Petition was withdrawn and another Writ Petition W.P.No.15628/2006 has been filed and the subject land in both the Writ Petitions is the same. It is also further stated that the said W.P.No.15628/2006 was disposed of on 1-8-2006 directing the second respondent to act according to law. After following due process of law under A.P.Land Encroachment Act, the land in question, whereupon construction is being taken up, was taken into the custody after disposing of their reply and serving eviction notice. It is also stated that it is not true to say that the panchanama was conducted at 7.30 p.m., on 28.9.2006 and the petitioner is put to strict proof of this allegation. It is further stated that a final order dt.27.9.2006 was also served on the petitioners and another encroacher. It is also further stated that inspite of serving speaking orders and eviction notice, the petitioners went ahead with construction in full swing by engaging 100 – 150 labourers and this compelled the respondent to take over possession on 28.9.2006 at 4.30 p.m. It is also stated that it is not true to say that the petitioners were not present at the time of taking over possession and a Government sign board has also been erected. Further specific stand is take that the plot holders who purchased the land from Income-Tax Department in an open auction who are staying in the neighbouring plots have got their possession regularized by the Government on payment of Rs.1,000/- per sq.yard as per G.O.Ms.No.890, dt.12-11-1998. It is further averred in para 15 of the counter affidavit that the Income-Tax Department had not enquired into the rightful owner of the land in question. It is stated that Bhasker Moorthy has no right whatsoever to the land in question and the true owner of the land in question i.e., the Government has no knowledge of the said auction and the same has not participated in the auction proceedings, hence the certificate of sale issued by the Income-Tax Department is not binding on the respondents. It is also stated that having considered all the facts and circumstances, the respondents have invoked summary proceedings to take over possession of the land and as such the proceedings of the second respondent are absolutely legal and are as per law. 10. With the permission of the Court an additional counter affidavit was filed wherein it was specifically stated that the persons who have made constructions have got the land regularized vide G.O.Ms.No.890 dated 12-11-1998.It is also stated that originally the Writ Petition was filed by the first petitioner and later on second petitioner got himself impleaded. Several other factual details relating to the sale transaction also had been referred to. It is also stated that Gopal, Gayatri and Madhav Rao filed W.P.No.10791/2003 praying for a direction to restrain the respondents therein from interfering with the construction that was going on in plot No.113, 114 and 115 and obtained order of status quo on 31-5-2006 and they filed a letter dated 16-10-2006 seeking to withdraw the said Writ Petition and accordingly the said Writ Petition was dismissed as withdrawn. It is also stated that the petitioners in the above Writ Petition wanted to approach the competent authorities for getting the encroachment regularized. It is also further stated that later Smt. Vijayalaxmi, M.Pentamma and Vasantha fild W.P.No.15628/2006 praying for a direction against the respondents not to interfere with their possession over the land in H.No.10-3-113/P, 10-3-32/9/114P and 10-32- 9/115P in East Marredpally and the Writ Petition was disposed of directing the respondents to act in accordance with law. It is stated that in pursuant thereto a show cause notice was issued and the filing of the suit O.S.No.1135/2006 again had been referred to. The suppression of material facts also had been specified and it is also specifically stated that the petitioners may sell away the plots to gullible persons and may cause loss to them since the petitioners are not having any legal rights to make such constructions. Several Writ Petitions filed in relation to Sy.No.74 pending before this Court also had been referred to which are as hereunder:- W.P.No.27218/2006 filed by Pradeep & others W.P.No.22831/2002 filed by Grand Estates Pvt.Ltd. W.P.No.8916/2004 filed by Manoj Kumar and others W.P.No.11510/2005 filed by Venkat Swamy W.P.No.14577/2000 filed by