THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.14295 of 2005 (Dated : 11-08-2010) Between: Dhirajlal T.Kapadia S/o late T.L.Kapadia Somajiguda, Hyderabad and others …Petitioners A n d State of Andhra Pradesh rep. By its Principal Secretary, Revenue Department, And others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.14295 of 2005 ORDER: This writ petition has been filed by the petitioners, who are four in number, seeking a mandamus declaring the action of the respondents in divesting the petitioners of their right, title and possession of the land admeasuring 14256 Sq. yards situated at Road No.2, Banjara Hills in Survey No.403/1/paiki, Shaikhpet village and Mandal, Hyderabad District without passing final orders pursuant to the show cause notice No.F4/2340/92, dated 26.06.1993 as arbitrary and illegal. A further direction has been sought for to the respondents not to put the land to public auction, sale, allotment or in any other manner detrimental to their right, title and interest; and direct the respondents to remove the temporary barbed wire fencing erected around the land owned by them. 2. Background facts, in a nutshell, are:- One Shaikh Ahmed S/o Ismail owned five acres of land in Survey No.403/1/paiki of shaikhpet village. He executed a registered sale deed on 15.6.1994 in favour of Smt. B.Venkatalakshmi and Smt. G.Vijaymani. The purchasers got their names mutated in the revenue records in place of Shaikh Ahmed. They partitioned the land under a registered partition deed dated 10.5.1965. In the said partition, Smt. B.Venkatlakshmi got Ac.3-318 Sq. yards and whereas and Smt. G.Vijaymani got 6000 Square yards. Smt. B.Venkatlakshmi, in turn, sold an extent of 14256 Sq. yards to the petitioners 1 to 3 under a registered sale deed dated 2.9.1965. They are put in possession of the land on the date of the sale and since then they have been in possession and enjoyment of the land. The petitioners 1 to 3 entered into two separate agreements of sale dated 29.02.1982 and 29.03.1982 in favour of 4th and 5th petitioner-societies. (b) The District Revenue Officer conducted enquiry under Section 15(2) of A.P (Telangana Area) Record of Rights in Land Regulation, 1358 Fasli and ordered for correction of entries in Khasra Pahani and the revenue records in favour of petitioners 1 to 3 in File No.B2/9587/82, dated 25.5.1991. While so, the District Collector, Hyderabad District-2nd respondent issued Show-cause notice through his Proceedings No.F4/2340/1992, dated 17.12.1992 proposing to revise the order passed by the District Revenue Officer on 25.05.1991. The 1st petitioner submitted explanation to the Show-cause notice on 01.3.1993. The District Collector, Hyderabad-2nd respondent issued 2nd Show-cause notice dated 26.6.993 in File No.F4/2340/92 proposing to cancel the order passed by the District Revenue Officer on 25.5.1991. The 1st petitioner submitted explanation to the 2nd Show-cause notice 15.7.1993. Without passing final orders pursuant to the Show- cause notices, the respondents fenced the land by temporary barbed wire. Hence, this writ petition by the petitioners with a prayer stated supra. 3. For better understanding of the grievance of the petitioners, I deem it appropriate to refer paras7 and 8 of the affidavit filed in support of the petition, which read as hereunder:- “7. I respectfully submit that finding very difficult to deal with the contentions canvassed by me in response to the two different show cause notices, one dated 17.12.1992 (but not dated 17.10.1992) and 26.06.1993, the District Collector has not passed final orders, he kept quiet in the matter. It is thus obvious that he has conceded in principle about the genuineness of my claim to the title and ownership of the land in question. 8. However, the State Government seems to have taken decision from recently to put to public auction and sale, land belonging to the government situate within the limits of twin cities of Hyderabad and Secunderabad and adjoining places on the premise that the State Government is unable to preserve and protect the Government land from being encroached upon. Therefore, they have started identifying the so called lands belonging to the Government and started undertaking construction of temporary fencing around the same so that they can be put to public auction eventually. I understand that in pursuance of the decision taken by the State Government, the District Collector of Hyderabad has already initiated the process by making available for sale the applications for participation of public auction of Government lands which commenced on 15.06.2005. I respectfully submit that the auction programme is slated to be commenced from 15.07.2005. I respectfully submit that though the land in question is not incorporated in the information brochure on the application form issued by the 2nd respondent herein, but nonetheless, I have noticed that overnight, under the guidance of the MRO, Shaikhpet, the land in question has been fenced last week. This fencing operations have been carried out over a period of 3 days during the night time. Since I am out of station, I could not realize this immediately. As soon as I have noticed, I have contacted the officials of the MRO’s office at Shaikhpet as well as the Collectorate. Except pointing out that the fencing has been undertaken by them, only to protect the land from any encroachment, they are not in a position to give me any answer as to how they can fence property belonging to private citizens. I suspect that the Revenue Officials are quietly seeking to dispossess me by entering upon the land illegally. I humbly submit that the State is also governed by rule of law. They cannot encroach upon land belonging to private citizens and fencing it around under the garb of protecting the land from potential encroachment. I submit that no orders have been passed by the District Magistrate and Collector pursuant to the show cause notice issued by him in his proceedings No.F4/2340/92, dated 26.06.1993. My title to the land in question cannot be divested, I continue to be a lawful owner and peaceful possessor of the land in question. Only after passing a valid and legal order, the State can divest me of my right and title to the property in question. I humbly submit that the highhanded action of the 2nd respondent in fencing the land in question and accomplishing the said task during the night times, during the last week of June 2005 is highly improper and illegal. It is obvious that the 2nd respondent is seeking to treat my right and title over the land in question as to have been extinguished even without passing any orders pursuant to his show cause notice dated 26.06.1993. I humbly submit that I am entitled to my right, title and possession of the land in question and the same cannot be treated as the Government land nor can the same be made or put to public auction/sale. Any such act on the part of the respondents herein is grossly arbitrary and illegal. It is wholly unjust and untenable. For the inability to meet my contentions canvassed by way of reply to the said show cause notice dated 26.06.1993, the 2nd respondent cannot convert the show cause notice as final order. I respectfully submit that rights of a citizen cannot be divested without the authority of law. That is the assured right in terms of Article 300A of our Constitution and hence, the action of the respondent is also unconstitutional.” 4. Rule nisi came to be issued on 05.7.2005. An interim order came to be granted on the even date directing the respondents to maintain the property in tact till disposal of the writ petition, vide W.P.M.P.No.18158 of 2005. 5. The respondents entered appearance and filed counter. Mr.Navin Mittal, I.A.S., Collector & District Magistrate, Hyderabad District has sworn to the counter affidavit. The counter affidavit, in brief, is :- 5(a). Town Survey was conducted from 1964 to 1971 under the provisions of Andhra Pradesh Survey and Boundaries Act, 1923 in Hyderabad District including Shaikpet village. The Town Survey entries have finally been notified in the Gazette under Section 13 of the said Act and the same became final and conclusive proof, which cannot be altered by any means except in a civil suit instituted within three years from the date of said notification. The land in question falls in T.S.No.1/1/1/A/1, Block-“B”, Ward No.10, which is classified as “Government land” and in respect of this land Town Survey entries have been notified in the Gazette No.41, dated 06.8.1977. The three years period in this case expired on 05.8.1980 and no suit was instituted by the petitioners under Section 14 of the A.P.Survey and Boundaries Act, 1923. Therefore, the petitioners have no rightful claim over the schedule property. (b). The Revenue Divisional Officer, Hyderabad has filed a Land Grabbing Case in LGC No.45 of 1991 before the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 against one C.P.Roy, Jagapathi Rao, M.H.Chenoy and Anil Kndal for grabbing the Government land to an extent of 4096 Sq. Mts situated in T.S.No.1/1/1A/1, Block-B, Ward No.10 co-related to Sy.No.403/Part of Shaikhpet village. The respondents in the said case have relied upon certain spurious documents and traced their title through one Shaik Ahmed. After conducting elaborate trial, the Special Court has allowed the application by order dated 25.9.1996. The Special Court observed that orders passed by the District Revenue Officer in B2/9587/82 have no probative value and no credence can be given to them. When Shaikh Ahmed had no title to the land, the petitioner could not derive any better title than that of Shaik Ahmed. 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioners submits that the District Collector having issued two Show-cause notices and received the explanation from the 1st petitioner, failed to pass any final orders and it indicates that the District Collector,Hyderabad-2nd respondent withdrew the Show-cause notices in which case, it is impermissible for the respondents to lay their hands on the lands claimed by the petitioners. A further submission has been made that the order passed by the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 in LGC No.45 of 1991 and 12 of 1992 came to be set aside by this Court in Writ Petition No.22323 of 1996 and batch upholding the title of Shaik Ahmed from whom the writ petitioners therein and the petitioners 1 to 3 in the present writ petition claim the property and since the sale deeds in favour of the petitioners in the above-referred writ petitions have been upheld, the respondents cannot claim the land in occupation of the petitioners as Government land. Learned counsel took me to the judgment of this Court in Writ Petition No.22323 of 1996 and batch very extensively in support of his contention that Shaik Ahmed through whom the petitioners are tracing the title was the original owner of Survey No.403/1/paiki admeasuring five acres of land. Much emphasis has been laid by the learned counsel on the following paragraph of the judgment in W.P.No.22323 of 1996 and batch, which reads as hereunder:- “ The State has filed an application under Section 8 of the Land Grabbing Act followed by an amendment application taking inconsistent stand as to how the Government is the owner of the property in question and trying to improvise their earlier stand as to the extent of the property is in agreement with the buildings admeasuring 3079.37 Sq.mtr. It has come in the evidence that the petitioners purchased the land in question from the vendors of Shaik Ahmad who was pattadar as per 1954-55 khasara pahani. Vassol Baqui Register supported the case of the petitioners as there was a reference to transfer of property from Shaik Ahmad to venkata Lakshmi and Vijaya Mani. So also the Faisala Patti to the above effect. On 25-3-1991, the District Revenue Officer passed an order in favour of the purchasers. Mutation was also carried on. The documents produced by the petitioners- purchasers namely Exs.B-1 to B-23 speak as to how they came in possession of the property in question and how they have acquired and how they have perfected their title over the schedule property. Ex.B-13 the order of the District Revenue Officer was not challenged by the State before the appellate authority. The State’s dis-agreement with the order of the District Revenue Officer is on the ground that the same was passed by the D.R.O colluding with the petitioners and as such he has been kept under suspension. As long as the order of the District Revenue Officer stands, it is not available to the State to contend that the schedule property belongs to the Government. The witnesses of the State namely the M.R.Os and the Surveyor, Pws.1 to 3 admitted before the Special Court that they found prior to the filing of the applications in the year 1991 that the petitioners-purchasers have been in possession and they also put up constructions like buildings and compound walls. That means they have come to know about the alleged grabbing of the land from 1985-86 to 1991. There is no explanation why the State was silent in not taking action against the alleged land grabbers till 1991. The order passed by the Survey Department on which the State placed reliance, does not bind the petitioners-purchasers as the same passed without notifying the petitioners and hearing them in the matter. The Government is aware of giving relaxation to the petitioners under R.23 of Lay Out Rules, 1965, thereby permitting the petitioners to form layout. The Government is also aware of the fact that the constructions made in the schedule property was only after obtaining the necessary permission from the Hyderabad Municipal Corporation. The petitioners-purchasers produced the sanctioned plan, namely Ex.B-1 relating to approval of layout and tax receipts. When the Government and the local authority sanctioned layout, granted permission to construct buildings and collected taxes, it is difficult to hold that such constructions are unauthorized or the Government was not aware that the petitioners have been in occupation of the disputed property. The special court placed reliance on the documents produced by the State namely Exs.A-1 and A-2 which were prepared at the time of filing of the application u.s.8 of the Land Grabbing Ac; Exs.A-3 and A-4 pahani extracts for the year 1981-82 and 1986-87 and Exs.A- 10 to A-21 which speak that the land was earlier allotted to Nawab Kasim Yar Jung. Such allotment was cancelled as the said Nawab Kasim Yar Jung committed default in payment as required. These documents were prepared just either at the time of filing of the application or subsequent to the filing of the applications. This raises a doubt as to the genuineness of these documents or desperate attempt on the part of the authorities of the State. Whereas the documents produced by the petitioners-purchasers, namely Khasara pahani, Faisala Patti, Vasool Baqui register, order of mutation and the municipal tax receipts, all suggest that the buildings constructed by the petitioners are not unauthorized constructions. On the other hand, the petitioners-purchasers came in possession of the schedule property not as grabber but as owners. Thus, the presumptive value attached to the entries made in the above documents has not been rebutted by the State giving rebuttal evidence. In the absence of such rebuttal evidence, the entries made in the revenue records will have a presumptive value. As such the genuineness of the said documents are to be accepted as held by the Supreme Curt in the case of SHIKHARCHAND v. D.J.P KARINI SABHA[1] and BALAJI SINGH v. STATE OF U.P.[2]”. 8. Learned Government Pleader for Revenue appearing for the respondents submits that the petitioners cannot compare their case with that of the petitioners in W.P.No.22323 of 1998 and batch since the petitioners herein allegedly have not put up any constructions over the land in dispute. A further submission has been made that the District Revenue Officer issued proceedings dated 25.5.1991 invoking powers under the Act, which has been repealed by virtue of A.P.Rights in Land and Pattadar Pass Books Act,1971, and therefore, the order passed by the District Revenue Officer on 25.5.1991 ordering mutation of entries in favour of Venkatlaxmi and Vijaymani i s non est in law. Learned counsel took me to Section 13 of the A.P.Rights in Land and Pattadar Pass Books Act, 1971, which reads as hereunder:- “13. Repeal and Savings:- The Andhra Pradesh (Telangana Area) Record of Rights in Land Regulation, 1358 Fasli (Regulation No.LVIII of 1358 F) and all standing orders and any other provisions of law relating to the record of rights of land as in force in the State are hereby repealed. Provided that the provisions of Section 8 of the Andhra Pradesh General Clauses Act, 1891 (Act 1 of 1891)shall be applicable in respect of the repeal of the said enactment, standing orders and other provisions of law, and Sections 8 and 18 of the said Act shall be applicable as if the said enactment, standing orders, provisions of law had been repealed and reenacted by an Andhra Pradesh Act.” By referring the above repealed provisions, learned Government Pleader contends that the order passed by the Revenue Divisional Officer on 25.5.1991 in File No.B2/9587/82 is deemed to be non est in law. 9. Be that as it may, the District Collector, Hyderabad District-2nd respondent issued two Show cause notices to Smt. Venkatalakshmi proposing cancellation of the order passed by the District Revenue Officer in File No. B2/9587/82 dated 25.05.1991. No final orders have been passed after issuing the Show-cause notice. Various subsequent developments have taken place after submission of explanation by the 1st petitioner to the Show-cause notices dated 17.12.1992 and 26.6.1993. Certain proceedings have been initiated against the purchasers from Smt.G.Viajymani before the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act, 1982. The Special Court declared the purchasers as land grabbers and thereupon, the purchasers carried the matter to this Court by filing Writ Petition No.22323 of 1996 and batch and this Court taking into consideration of the fact that the purchasers put up constructions after obtaining due permission from the various authorities directed for regularization of their possession on payment of costs of Rs.1,000/- per square metre. For better appreciation, I may refer the relevant portion of the order passed by this Court in the above-referred W.P.No.22323 of 1996 and batch:- “ The petitioners-purchasers by giving both oral and documentary evidence proved their possession through their predecessors-in-title for a long period. They also established the identity of the property which the Special Court failed to notice. The reasoning adopted by the Special Court to declare that the Government is entitled to seek eviction of the petitioners-purchasers is quite incorrect. The State authorities themselves admitted the continuous possession and enjoyment of the petitioners and their predecessors-in-title over the schedule property even prior to the filing of the applications before the Special Court. Even though the State contended that the petitioners have grabbed the land, but they kept silent for several decades for initiating any action. The State failed to prove that the petitioners illegally took possession of the land or they are in occupation of the land without lawful entitlement. Thus, the conduct on the part of the Government will persuade the Court to take a little lenient view in favour of the petitioners- purchasers to allow their possession and enjoyment on the one hand and to safeguard the interest of the State on the other by directing the petitioners- purchasers to pay compensation to the State. Regarding the market value, no satisfactory evidence was given by both sides. It has come in the evidence of State witnesses that the market value of the land is at Rs.1000/- per Sq.metre. During the course of arguments the leaned counsel appearing for the petitioners also brought to our notice that in respect of similar cases which had arisen out of same S.No.403/1/paiki, the Special Court and also this Court had fixed the market value ranging from Rs.600/- to Rs.750/- per sq. metre. When this Court asked the Government Pleader that if this Court desires to ask the petitioners-purchasers to pay compensation to regularize their possession what would be the reasonable market value. The Government Pleader though tried to make a tall claim, but ultimately had conceded that the M.R.O before the Special Court stated that the market value of the lands is Rs.1000/- per Sq. metre. The petitioners-purchasers requested the Court to fix the market value at Rs.700/- only per Sq. metre. The petitioners-purchasers requested the Court to fix the market value at Rs.700/- only per sq.metre. However, taking into consideration the importance of the location of the land, position of the petitioners- purchasers and huge investments made on the said portions of the property and the market value fixed in respect of similarly situated plots either by the Special Court or by this Court, we feel that justice will be met if market value is fixed at Rs.1000/- (one thousand rupees) per sq.metre. This figure is also in agreement with the G.O., dated 3-3-1994. Since both sides agreed to fix reasonable market value, driving the parties once again to approach the Committee to fix the market value by giving evidence is neither warranted nor it serves any purpose. Therefore, we feel that there is no necessity to give any finding on adverse possession as both the parties expressed their satisfaction if possession of the petitioners is regularized by ordering payment of compensation to the State.”. 10. Learned counsel appearing for the petitioners by placing reliance on the above observation contends that a similar direction may be given to the respondents to regularize their lands on payment of compensation of Rs.1000/- per sq. metre. A Division Bench of this Court in W.P.No.22323 of 1996 and batch has taken into consideration the fact that constructions have been made by the petitioners therein after obtaining necessary permission from the concerned authorities. With regard to the present petitioner, it is not clear from the material available on record that any constructions have been made by the petitioners after obtaining necessary permission from the concerned authority. The 2nd respondent after receiving explanation from the 1st petitioner has not passed any final orders as on this day. 11. Having considered the facts and circumstances, I am of the view that the petitioners can be permitted to submit supplementary explanation to the Show cause notice dated 26.06.1993 and thereupon, the 2nd respondent has to consider the explanation offered by the petitioners and pass final orders. The petitioners have to submit their explanation within two weeks from today and thereafter, the 2nd respondent-District Collector, Hydeabad District has to pass final orders, as expeditiously as possible, preferably, within a period of four weeks. 12. Accordingly, the Writ Petition is disposed of. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.11-08-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.14295 of 2005 (Dated : 11-08-2010) [1] AIR 1974 SC 1178 [2] AIR 1976 SC 2273