THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.18940 OF 2004, 1623, 2604 and 18298 of 2005 COMMON ORDER: As controversy in these four writ petitions is in relation to land admeasuring Acs.0.20 gts in survey No.138 of Jagtiyal Municipality in Karimnagar District (hereafter, petition schedule land/PSL), it is necessary to dispose of these writ petitions by a common order. In W.P.No.1623 and 2604 of 2005 (second and third cases), petitioners assailed resolution No.140, dated 30.11.2004 (impugned resolution) of Municipal Council, Jagtiyal (Municipality, for brevity) whereunder it was resolved to resume/take possession of Acs.0.16 gts of land from Manchala Krishna, S/o.Ramesam, [petitioner in W.P.No.18940 of 20004 (ﬁrst case)]. Three petitioners in third case claim half share in PSL. Petitioner in ﬁrst case prays for direction to Municipality not to demolish generator room in petrol bunk constructed in Acs.0.03 gts 3 sq.yards in survey No.138, bearing Municipal No.2-2-45, Jawahar road, near New Bus stand. W.P.No.18298 of 2005 (fourth case) is ﬁled by seven petitioners claiming a share in PSL. They are aggrieved by an order dated 16.6.2005 of Commissioner of Municipality refusing their application for building permission on the ground that Municipality is claiming title to PSL. All the writ petitions are opposed by Municipality taking similar pleas and hence this common order. Case of purchasers in brief is as follows. PSL is property of Municipality. In 1952 District Board (immediate precursor of Municipality) allegedly divided PSL into plots and transferred to various persons after collecting sale consideration. Daram Veeramallaiah was allotted PSL for the purpose of setting up petrol bunk and kerosene shop. The land was enjoyed by Veeramallaiah and his brother Purushotham. Municipality executed a Kabala/Kibala[1] for an amount of Rs.2,000/- for construction of shed for petrol and kerosene oil. Under Kibala, Veeramallaiah was required to obtain building permission and pay taxes to Municipality and Government. Though PSL was allotted to Veeramallaiah, same was allegedly enjoyed by him and his brother Purushotham in equal shares. According to petitioners in third case, after death of Daram Veeramallaiah, in 1975, his successors got the property. Following is genealogy. Daram Manikam Veeramallaiah Purushotham (original allottee) Narayana Manchala Gampa Daughter Daughter Daughter Virupakshi Saraswathi Ramamohan Chandramohan Sravan Kumar Goutham (His son is 2nd Petitioner in W.P.No.2604 of 2005) It is alleged that in Municipal records as well as pahanis Veeramallaiah and Purushotham were recorded as owners of PSL. In family settlement among four grandchildren of Veeramallaiah, Ramamohan and Sravan Kumar got Acs.0.05 gts each. It appears out of ﬁve daughters of Purushotham, three of them relinquished their right in PSL in favour of Virupakshi and Saraswathi. They constructed shops and also sold mulgis to others including Lingam Goud, Rajam and Tirupathi Goud. All the respective heirs of Veeramallaiah were allegedly in possession and enjoying the land. By notice dated 07.1.1984, Municipality issued eviction notice to occupants. O.S.Nos.3 of 1984, 4 of 1984, 85 of 1988 and 87 of 1988 were ﬁled by Manchala Krishna, Virupakshi and Gampa Saraswathi for perpetual injunction. By common judgment dated 28.9.1989, learned Subordinate Judge, Jagtiyal, decreed suits against Municipality. It appears Municipality preferred A.S. (S.R.)Nos.10381 to 10383 of 1999 before this Court against common judgment dated 28.9.1989. These appeals were however dismissed as infructuous as persons in occupation appear to have delivered land in excess of Acs.0.03 gts 34 sq.yards to Municipality, who set up a sign board stating that the land belongs to Municipality. As many as 22 Councillors of Municipality gave complaint on 28.4.2004 to Commissioner. They requested to enquiry into nature of acquisition by Daram Veeramallaiah. It appears the complaint of councilors was placed before Sub-committee, who gave its report. Thereafter, Commissioner placed matter before Council. His comments are that in spite of number of notices, Kibala was not produced before Municipality, that Kibala is doubtful, that Kibala was fabricated to create rights over Government property and that it requires opinion of experts. He also opined as follows. (i) As per statement of Veeramallaiah and Purushotham on 28.9.1964, they do not have ownership rights over the land; (ii) Building sub- committee consisting of Daram Purushotham (as Chairman), D.Santhapurao and Majeed Hazari continued upto 29.5.1964 but after expiry of their tenure, on 16.6.1964, Daram Purushotham granted building permission after expiry of term of building committee and therefore it has no validity; (iii) In view of this, notice to remove illegal constructions may be given or Municipality may remove illegal construction and collect costs; (iv) Municipality may take necessary action for evicting the occupants from the land admeasuring 210’ X 15’, 185’ X 20’ and necessary action is required to be taken with regard to triangular land near Petrol bunk illegally occupied by Veeramallaiah. It was further pointed out that Veeramallaiah did not produce any ownership certiﬁcate and no record was available in the oﬃce of District Collector/Revenue Divisional Oﬃcer. Legal heirs of Veeramallaiah submitted Urdu document. After getting it translated by Government recognized Translators of Hyderabad, incongruous and inconsistent things came to light, namely, Kibala was granted in 1958 when land itself was allegedly allotted in 1952. After considering report of Sub-committee and Commissioner, Municipal Council unanimously passed a resolution to resume Acs.0.16 gts of land excluding land which is being used for petrol bunk. It was also resolved to submit Xerox copy of Kibala and other documents to Commissioner for Vigilance and Enforcement, Hyderabad, for conducting enquiry. Manchala Krishna, who is proprietor of M/s.Manchala Krishna and Son, Bharat Petroleum Dealer, ﬁled ﬁrst case seeking a declaration that action of Municipality in trying to demolish structures/petrol bunk situated in Acs.0.03 gts 3 sq.yards bearing Municipal No.2-2-45 as illegal and arbitrary and for consequential direction. He alleged that on 08.10.2004, oﬃcials of Revenue, Municipal and National Highway Authority of India, directed him to remove petrol bunk for the purpose of widening road. This Court while admitting writ petition on 13.10.2004 passed interim orders in ﬁrst case directing said oﬃcials not to dispossess petitioner for widening road without due process of law. As noticed supra, second and third cases are ﬁled seeking invalidation of impugned resolution challenging impugned resolution. Subsequent purchaser from petitioners in third case therefore ﬁled fourth case challenging order of rejection, in which this Court while admitting the matter on 03.10.2005 ordered notice. Municipality ﬁled application being WVMP No.2160 of 2007 for vacating interim order in ﬁrst case. The matters are taken up for final hearing with consent of parties. The case of Municipality as culled out from three counter aﬃdavits (no counter is ﬁled in fourth case) ﬁled, in brief, is as follows. Petitioners are not owners and possessors of part of land in survey No.138. The document relied on (Kibala) shows that it is not a sale and land was temporarily allotted for erection of a shed for running petrol and kerosene outlet. The land was given to Daram Veeramallaiah, as there was no petrol bunk in the town after considering his application for starting petrol bunk. As per terms and conditions of allotment, the land is to be used only for the purpose for which it is allotted. Petitioners did not construct petrol/kerosene outlet. They obtained permission by misrepresentation, constructed shops and got assigned door numbers. Plea of family settlement among them is set up suppressing real facts. The allegation that Municipal Commissioner admitted in earlier suit about purchase of PSL to Daram Veeramallaiah is not correct. Writ petition is not proper remedy for agitating title and petitioners have to approach Civil Court. Municipality filed written statements in earlier suits denying plaintiﬀs allegations. All the suits are for perpetual injunction and petitioners have no title over the land covered under Kibala. Therefore Municipal Council passed impugned resolution for resumption of land, as only Acs.0.04 gts was utilized for establishing petrol bunk. The background of case and oral submissions by learned Counsel for both the parties would require dealing with three aspects, which are considered infra one after the other. QUESTION OF TITLE There is serious dispute with regard to title to PSL; Municipality claiming ownership while admitting that it was temporarily allotted to Daram Veeramallaiah and also claiming that they are entitled to resume possession of the land, which was not utilized for setting up petrol/ kerosene outlet. In such a case, whether petitioners can seek a writ of Mandamus claiming title and/or whether Municipality was justiﬁed in rejecting building permission to petitioners in fourth case. It is well settled that questions of disputed title to immovable property cannot be gone into in a writ petition. Questions of title are governed by ordinary civil law and any person claiming title to immovable property in case of serious opposition to the title claimed has to approach civil Court seeking a declaration of title. Even where a person who is allegedly in occupation of a disputed land and claims title by reason of adverse possession, writ petition is not a proper remedy. ( s e e Parvatibai Subhanrao Nalawade v Anwarali Hasanali Makani[2], State of Rajasthan v Bhawani Singh[3], Mohan Pandey v Usha Rani Rajgaria[4] and Dwarka Prasad Agarwal v B.D.Agarwal[5]). Therefore when there is serious question of title, writ petition would not lie. By impugned resolution, Municipality decided to resume land on the ground that purpose for which allotment was made in 1952, was deviated from and that only a small part of the land was utilized for petrol bunk by his allottee’s grandson, Manchala Krishna. The resolution validly passed by Municipal Council cannot be invalidated in exercise of writ jurisdiction for two reasons. First, resolution of Municipal Council is a decision of democratically elected local authority and such democratic process cannot be curtailed or set at naught in a judicial review. Secondly, Andhra Pradesh Municipalities Act 1965 (Municipalities Act) provides for “cancellation or suspension of resolutions passed by Municipal Council.” Section 59 thereof empowers Government either suo motu or of a representation to cancel any resolution passed or order issued or licence granted. Based on disputed question of fact that Daram Veeramallaiah and Purushotham were absolute owners, petitioner invoke writ jurisdiction virtually for cancellation of resolution. It is impermissible in law. Any person aggrieved by resolution can always approach Government before ﬁling the writ petitions. It would have been diﬀerent nature if petitioners had challenged action or inaction of Government under Section 59 of Municipalities Act, in which event scope of a application for judicial review would be altogether different. Though legal position is not seriously disputed, learned Counsel however submits that decision/resolution of Municipal Council is vitiated by mala fide (malice in law), and therefore, he insists that writ petition would lie. In support of submission learned Counsel relies on (i) Kibala or certiﬁcate granted by Municipality in 1958, (ii) copies of plaints, written statements, common judgment or order of this Court in injunction suits, (iii) Pahani for 1954-1955. After carefully and thoroughly perusing these documents, this Court is not able to countenance submission of learned Counsel for petitioners that impugned resolution is vitiated by malice inlaw. The reasons are as below. (i) Kibala (a) Translated copy of Kibala produced by learned Standing Counsel would show that it was executed on 02.7.1952 by Secretary on behalf of Jagtiyal Municipality. Curiously on the ﬁrst page of it while showing ﬁle No.103/71/1952, it appears as if it was given in July 1958. There is no proper explanation for this. As averred in the counter aﬃdavits, the search in the oﬃce of District Collector and Revenue Divisional Oﬃcer revealed that there is no such record and there is no record in Municipal oﬃce as well. Further Municipality repeatedly asked Daram Veeramallaiah to produce Urdu document and he did not produce same before he died in 1975. Admittedly Kibala was produced by legal heirs of Daram Veeramallaiah, after his death in 1975, which itself creates suspicion. (b) Be that as it is, a perusal Kibala would show that Veeramallaiah was given occupancy rights over Acs.0.20 gts out of total extent of Acs.14.14 gts in survey No.138, which belonged to Municipality. Under the said document, Veeramallaiah was required to use land for construction of sheds for petrol/kerosene oil outlet and also pay taxes of land revenue. There is no proper explanation given as to why Municipality did not execute sale deed when it was absolute sale. (c) Even assuming that there is substance in the submission of learned Counsel for petitioners, the same is belied by statement given by Daram Veeramallaiah and Purushotham on 28.9.1964 (to which a reference is made in the agenda note No.9 relating to resolution No.140). It appears both of them gave a statement admitting that they have no ownership rights over the land. (d) It is no doubt true that the legal heirs or their purchasers obtained Municipal permission and constructed shops/mulgis. These were also assessed to property tax by assigning Municipal numbers. Grant of permission for construction of building and assessment to property tax by themselves does not confer any title. This is well settled. Secondly agenda note leading to impugned resolution shows that it was Purushotham who was Chairman of building committee accorded building permission to successors of Veeramallaiah, after expiry of term of building committee. This falsiﬁes case of petitioners. Though resolution is challenged, petitioners did not speciﬁcally challenge various facts and circumstances found in agenda note and in any event various aspects of title do not support case of petitioners and they have to agitate in a Civil Court. (ii) Injunction suits (a) In O.S.No.3 of 1984 ﬁled by Manchala Krishna, plaint schedule land is described as Acs.0.03 gts 3 sq.yards in survey No.138 (Municipal No.2-2-45). In O.S.No.4 of 1984 ﬁled by Manchala Virupakshi, PSL is described as shop bearing Municipal No.2-2-44/26/A admeasuring 50 sq.yards in survey No.138. In O.S.No.87 of 1988 ﬁled by Gampa Saraswathi (sister of Virupakshi), property is described as premises bearing No.2-2-44/25 admeasuring Acs.0.09 gts 55 Sq.yards. (b) In all the suits, though they claim to be absolute owners, there was no issue regarding title presumably for the reason that all the suits are for permanent injunction. Be that as it is, in written statements, Municipality denied that they interfered with possession and alleged that only Acs.0.20 gts was allotted to Veeraiah, but his successors encroached upon excess land of Municipality. (c) In the common judgment dated 28.9.1989, Court of Subordinate Judge, Jagtiyal, having found that there is no evidence of plaintiﬀ encroaching upon excess land granted injunction. Municipality filed appeals. These appeals were dismissed by this Court as infructuous observing as below. It is submitted by the learned counsel for the respondent that the excess extent of 3 guntas and 34 sq.yards was demarcated by the Advocate- Commissioner who submitted his report and that accepting the same the respondent has delivered physical possession of the excess area to the appellants. It is further submitted that the appellants have accepted the delivery of possession and have put a sign board stating that the land belongs to the Municipality. In the light of the above events, which have taken place subsequent to the disposal of the suit by the lower court, the appeal has become infructuous and A.S. (SR) No.10381 of 1990 is rejected. (d) From the above observations by this Court, it is not clear whether petitioners herein were allowed to retain Acs.0.03 gts 34 sq.yards where constructions were made and delivered possession of balance of land to Municipality where they erected a sign board. Whatever be the purport of judgment in injunction suits and orders passed by this Court, still fact remains that title to the land is clouded. Much more evidence is required to decide whether there was valid transfer in favour of Veeramallaiah. (iii) Pahani Pahani for 1954-1955 shows that Daram Veeramallaiah is occupant and that he is in occupation by reason of purchase for money from Municipality. When he is in occupation as owner, his name ought to have been appeared as pattadar in column No.8. Curiously, same is absent in Pahani produced by petitioners. That revenue entries by themselves do not confer any title is settled position of law. POWER OF MUNICIPALITY All vacant lands belonging to Government situated within local limits of Municipality shall be deemed to be in possession and control of Municipal Council for the purpose of Municipalities Act. Municipality is under legal obligation to keep vacant lands free from encumbrances and restore possession to the Government when required. Municipality shall not alienate vacant land to any third party without prior permission of Government. There is no record produced before this Court to show that Jagtiyal Municipality obtained prior permission of Government before executing Kibala. Secondly, in 1958, Municipalities were regulated by Andhra Pradesh (Telangana Area) District Municipalities Act 1956. Under section 72 thereof, only vacant lands vest in Municipality but Municipality does not speciﬁcally confer power to transfer or alienate land in favour of third parties. These aspects have been considered by this Court in K.Rama Krishna v Municipal Council[6]. After referring relevant provisions of the Act, this Court explained legal position as under. The law vests all the Government property in the Municipality. The Municipality is deemed to be in possession of all Government lands. The paramount owner of all vacant lands belonging to or under the control of the Government is the State. They are vested for a limited purpose in the Municipality for protecting them and keeping the vacant land free from all encumbrances. The vacant land belonging to the Government can be utilized in two ways – either by restoring the possession or control to the Government for any public purpose or the Municipality itself utilizing the land for construction of any building or structure with the prior permission of the Government. Therefore, the Municipality shall be deemed to be in possession of the Government land as a trustee. A trustee is required to take all necessary steps to protect the land from encroachment, which is made clear in sub-section (2) of Section 37 of the Act. … … … … Further, sub-section (2) casts a duty on the municipality to keep all vacant lands in its possession free from encumbrances. Should there be any encroachment of any land belonging to the Government, the Municipality cannot wait till some other oﬃcial takes necessary steps for removing the encroachment. It shall be the duty of the Municipality to remove the encroachment. In such an event, the only recourse should be either under Section 192 or Section 194 of the Act. It is not denied by both the learned Counsel, that Section 192 has no application and strictly it applies to encroachment on road margins. It is interesting to point out that all the roads, lanes and passages within the jurisdiction of the Municipality vest in the Government as a paramount owner and they remain vested in the Municipality for the purpose of maintenance. (emphasis supplied) RELIEF TO BE GRANTED TO PETITIONERS First case by Manchala Krishna was ﬁled alleging that officials orally directed him to remove generator room. Even if a person is not owner, if such person is in occupation of Municipal land or land over which he claims title, Municipality has to follow procedure under Section 174 of Municipalities Act. Law deprecates high-handed eviction and arbitrary demolition of structures for the purpose of widening road. Two Division Benches of this Court laid down principles in such a situation. These were culled out in an unreported judgment in W.P.No.21198 of 1997 dated 03.2.1998, which were reported in M.Madhavillatha v Rajahmundry Municipality[7] as follows. (i) Where a property is required for public purpose viz., widening of roads or for any other purpose, the authorities straightaway cannot take law into their hands and jump into the premises, dispossess or evict the occupants or demolish the property. (ii) If the authorities concerned want to take action for eviction/dispossession of the occupants or demolition, they shall issue 60 days' prior notice notifying as to the nature of the property, the property to whom it belongs and the proposed action calling for explanation/objections if any from the occupants. On receipt of such objections, if there is any objection as to the ownership of the property, the authorities should determine the extent of encroachment or unauthorised occupation and also determine whether the property in question belongs to Government/any other local self Government or authority or the occupants and pass appropriate orders within three months from the date of receipt of the objections, after aﬀording an opportunity of being heard to the occupants. (iii) In case where demolition of private property has already been made, the authorities shall determine the damages on the basis of the assessment to be made by the Engineer of the Roads and Buildings Department and disburse the amount of damages quantiﬁed forthwith. (iv) If the demolition is in respect of local bodies' Government property, the question of damages does not arise. In such an event, the occupant shall be entitled to remove the material used for the construction. (v) In case of demolition of private property, the authorities concerned shall determine the loss caused to the occupants on the basis of the assessment to be made by the Engineer of R & B Department and on such assessment of damages, the concerned authorities shall take appropriate steps to disburse amount quantiﬁed forthwith. (vi) If there is any claim for grant/assessment of the property, the concerned authorities shall consider the same in accordance with law taking into consideration the eligibility and the entitlement of occupants, after making enquiry and till such claim is decided, there shall be status- quo obtaining as on today regarding the structures. Therefore any highhanded eviction or demolition for the purpose of widening road cannot be appreciated. If petitioner’s land is required for public purpose, it has to be acquired. As per Section 192(2) of Municipalities Act, in certain situations even an encroacher is entitled for compensation. In fourth case, petitioners’ application for building permission was refused on the ground that applicants’ title was not established by that day. Order of rejection challenged in the said writ petition is in accordance with Section 215 of Municipalities Act as interpreted by this Court in V.Jaya Prakash v Commissioner of Municipality, Khapra[8]. Relying on Delhi Municipality v Kishan Dass[9], it was held as under. The Municipalities Act is an Act inter alia providing for disciplined and planned growth of the municipal area. The power vested in various authorities should be exercised for public good. By exercising power in a manner, which would result in dispute, cannot be appreciated. The common law principle of absolute individual right is replaced by the principle of community welfare. Therefore, while passing orders under Section 213 read with Section 215, it is always open to the Commissioner to postpone the decision if there is a dispute between two rival claimants to the property in question. Indeed, when the dispute is sub judice, it shall be the duty of the Commissioner to postpone the permission, for the public authority must respect the Court’s decision and implement it and/or aid in implementing the same. In this context, a reference may be made to Article 144 of the Constitution of India, which is to the eﬀect that all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court. Therefore no exception can be taken to the order challenged in fourth writ petition. Insofar as second and third cases are concerned, they cannot be accepted for two reasons. As already explained above, the impugned resolution cannot be a subject matter of writ petition and question of title cannot be gone into in a writ petition. If so advised, petitioners may approach Government and/or ﬁle a suit for declaration of title, in which event, Civil Court shall, needless to mention, has to decide all the issues without in any manner being inﬂuenced by observations made hereinabove. The observations herein are only for the purpose of disposal of these cases on prima facie considerations, as question of title cannot be gone into in a writ petition.