* THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NO. 29386 of 1995 % FRIDAY, THE 13TH DAY OF NOVEMBER, TWO THOUSAND NINE # S.Mallesh S/o S.Muttaiah and others … Petitioners versus $ The Government of A.P., represented by its Revenue Secretary, Secretariat, Hyderabad and others … Respondents ! Counsel for the petitioners: Sri Rakesh Sanghi ^ Counsel for the respondents: Government Pleader for Revenue < Gist : >Head Note: ? 1. AIR 1953 SC 331 2. AIR 1961 SC 1457 3. AIR 1963 SC 385 4. AIR 1977 SC 789 5. AIR 1994 SC 152 6. AIR 1964 SC 807 7. 1859 6 CB (NS) 336 8. 1990 AC 368 9. AIR 1969 SC 78 10. AIR 2000 SC 2220 11. AIR 1969 S 560 12. AIR 1969 SC 439 13. AIR 2003 SC 2743 14. 2006 AIR SCW 5615 15. 2006(4) ALT 374 16. (1989)3 SCC 612 17. (9916)6 SCC 223 18. (1996)11 SCC 257 19. 1998(2) ALT 623 20. 202(1) ALT 466 21. 2003(1) ALT 3 22. AIR 1997 SC 2089 23. AIR 1919 PC 62 24. AIR 1960 Orissa 257 25. AIR 1990 SC 100 26. AIR 1971 AP 103 27. 1975(1) APLJ 385 28. AIR 1952 SC 192 29. AIR 1954 SC 207 30. AIR 1970 SC 645 31. AIR 1950 SC 188 32. AIR 1957 SC 804 33. AIR 1968 Ker 76 (FB) 34. AIR 1977 Pat 164 35. (1971)2 SCC 747 36. AIR 1966 SC 828 37. AIR 2004 SC 4609 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE 13th DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 29386 OF 1995 Between: 1. S.Mallesh, s/o S.Muttaiah, Hindu, aged about 60 years, 2. S.Raja, s/o S.Mallehsa, Hindu, aged about 24 years, 3. S.Janardhan, s/o S.Mallesha, Hindu, agedabout 26 years All are r/o H.No. 4-9-32, Hakeempet village, Golconda Mandal, Hyderabad Distict, rep by their GPA Holder Mr. P.Sai Babu s/o P.V.Narasimha Rao, Hindu, agedabout 37 years, H.No. 590, Gandhinagar, Hyderabad. ... PETITIONERS AND 1. The Government of A.P., represented by its Revenue Secretary, Secretariat, Hyderabad. 2. The Joint Collector, O/o the Deputy Collector, Hyderabad. 3. The Revenue Divisional Officer, O/o the RDO, Hyderabad. 4. The Mandal Revenue Officer, O/o MRO, Golconda Mandal, Hyderabad. 5. Hyderabad Urban Development Authority, Secunderabad. ... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for records relating to the order of the 2nd respondent in appeal bearing No.B2/9004/94, dated 16.12.1995, setting aside the order of the 3rd respondent in case No. B/4867/93, dated 25-8-1994 and the Occupancy Certificate dated 1-9-1994 based thereon and quash the same by issuing a Writ in the nature of Certiorari, or any other appropriate writ, order or direction and to pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.RAKESH SANGHI Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 29386 OF 1995 ORDER: Heard Sri Rakesh Sanghi, the learned counsel for the petitioners and the learned Advocate General for the respondents. The Joint Collector, Hyderabad (the 2nd respondent) by proceedings bearing reference No. B2/9004/94, dated 16.12.1995 (the impugned order), in an appeal preferred by the State represented by the 4th respondent [u/Sec. 24 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act 1955 (for short Inams Abolition Act)], set aside the order of the 3rd respondent in proceedings bearing reference No. B/4867/93, dated 25.08.1994. The petitioners herein applied for Occupancy Rights Certificate (ORC) in respect of an extent of Ac.5.29 gt, in Sy.No. 102/1 of Hakimpet village (the schedule lands) claiming to be inamdars of the property, granted as inam towards performing “Neerudi” service. The 3rd respondent granted ORC to the petitioners, by the order dated 25- 08-1994. Aggrieved thereby the State preferred an appeal u/Sec. 24 (1) of the Inams Abolition Act, to the 2nd respondent. The 2nd respondent allowed the State’s appeal. The case of the petitioners :- 1) The petitioners and their ancestors are in occupation of the schedule lands, granted to their ancestors by the Nizam for ‘Neerudi’ service rendered for a number of villages including Hakimpet. The entire Hakimpet village is Sarf-e-Khas and merged in the Diwani in 1358-F. 2) Though originally the Inams Abolition Act exempted certain inams including service inams from its purview, by the Amending Act 29/85 all inams including service inams were brought within its ambit. 3) The 4th respondent filed LGC 62/89 against the first petitioner and 17 others before the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (the Prohibition Act), alleging that they had grabbed Government land. The Special Court by the judgment dated 7.9.1992 declared that the first petitioner and the other respondents therein are not land grabbers within the meaning of the said expression as defined in the Prohibition Act; that the schedule lands are an inam granted towards ‘Neerudi’ service and that therefore an enquiry under the Inams Abolition Act should be made. The Special Court also granted liberty to the Revenue to resume the land after following due procedure. 4) The petitioners thereupon filed an application before the 3rd respondent (u/Sec. 10 of the Inams Abolition Act) for grant of ORC. Meanwhile, apprehending dispossession, the petitioners filed W.P.No. 18283/93. By the order dated 8.12.1993 this court disposed of the writ petition directing maintenance of Status Quo for a period of two weeks with liberty to the petitioners to file an application before the 3rd respondent for stay of dispossession. By another order dated 24.12.1993 the order of Status Quo earlier granted (for a period of two weeks) was extended till the disposal of the application for interim relief filed by the petitioners in the application filed before the 3rd respondent for grant of ORC. 5) By the order dated 25.08.1994 the 3rd respondent granted ORC to the petitioners. 6) The 4th respondent preferred an appeal u/Sec. 24 of the Inams Abolition Act before the 2nd respondent. During the pendency of the appeal before the 2nd respondent, as the petitioners’ possession was again being threatened, they filed W.P.No. 25318/95. This writ petition was disposed of at the stage of admission by the order of this court dated 10.11.1995, directing the 2nd respondent to dispose of the appeal preferred by the 4th respondent within two months and directing the parties to maintain Status Quo with regard to possession as obtaining on 8.12.1993 (the date of the order in the earlier W.P.No. 18283/93). 7) The 2nd respondent by the impugned order allowed and the appeal. 8) The impugned order is invalid since i) the conclusions therein are contrary to the findings recorded by the Special Court in LGC No. 62/89 and the judgment of this court dated 10.11.1995 in W.P.No. 25318/95; ii) the appeal preferred by the 4th respondent to the 2nd respondent is belated. The order of the 3rd respondent is dated 25.08.1994 while the appeal was preferred on 22.12.1994, beyond 30 days, though the appeal grounds were signed by the 4th respondent on 25.11.1994; and no petition for condoning the delay was filed along with the appeal; iii) only a rival claimant to ORC would be an aggrieved party entitled to prefer an appeal and not the State; neither the State nor the 4th respondent have the locus standi to prefer the appeal u/Sec. 24(1) of the Inams Abolition Act. Case of the respondents (State) :- The Special Deputy Collector (Land Protection) in the Office of the District Collector, Hyderabad has filed a counter, asserting: A) That Hakimpet is an ex-Sarf-e-Khas village. Sarf-e-Khas was abolished under the Sarf-e-Khas Merger Regulation Act 1358-F (1949 AD) and under the Jagir Abolition Regulation 1358-F. In 1330-F, during the currency of the Sarf-e-Khas regime an initial survey was conducted; the schedule lands were assigned Sy.No. 92 and described as Sarkari Kharij Khata. A revised survey was conducted in 1344-F; the earlier Sy.No. 92 was correlated to Sy.No. 102, admeasuring Ac.323.23 gts; and recorded as Poramboke Sarkari. The schedule lands are not recorded as ‘inam’ in the Inam Takhta Register of Hakimpet village but recorded as Government land. Mere payment of Sivai Jamabandi and penalty would not confer a right or title to the petitioner No.1 or his forefathers over the schedule lands. The petitioners and other claimants to this land are therefore encroachers. B) In 1961 and in 1974 the Tahsildar and Nizam-e-Zamabandi officer ordered eviction of unauthorized encroachers and these were evicted under the provisions of the AP Land Encroachment Act, 1905. C) A town survey was conducted under the AP Survey and Boundaries Act 1923 (the 1923 Act) and the schedule lands, in Sy.No. 102/1 were correlated to TS No. 14/P Block-A,Ward-12 of Hakimpet village and recorded as Government vacant land. The town survey of Hakimpet village was published in the AP Gazette No.31 dated 21.10.1979, under Sec. 13 of the 1923 Act. The entries recorded in the town survey as published in the Gazette are conclusive proof, unless modified by a decree of the Civil Court within three years from the date of publication of the Gazette notification. The TSLR having become final is binding on all persons including the petitioners. D) An essential pre-condition for treating any land as inam under the provisions of the Inams Abolition Act is that it should have been entered as inam land in the Inam Register; there should be remission of the whole or part of the land revenue; and should be entered in the village records as mafi or chowtai inam land and dastagarden after 20.07.1955, on which date all inams were abolished and the lands vested in the State. E) The land is recorded as Kancha Poramboke Sarkari even today and was never assessed to land revenue in the Revenue and Settlement Records. The schedule lands cannot therefore be considered as inam, consequently no ORC could be claimed by the petitioner in respect thereof. F) The order dated 25.08.1994 passed by the primary authority- the 3rd respondent (granting ORC to the petitioners) is clearly misconceived and unsustainable. No proper enquiry was conducted to determine fact whether the land is 'inam' as defined in Sec. 2(1)(c) of the Inams Abolition Act and to ascertain whether the petitioners were eligible for grant of ORC (even if the schedule lands are 'inam'). The State therefore through the 4th respondent filed the appeal under Sec. 24(1), to the 2nd respondent. The 2nd respondent rightly set aside the 3rd respondent's order, by the impugned order dated 16.12.1995. G) The petitioners failed to produce any document or furnish any proof to support their claim that the schedule lands are inam and were granted as inam. No records were produced or referred to either pertaining to the Survey Settlement and Revenue Records or other village Revenue records. The schedule lands were never treated or recorded as inam and are continuously recorded only as Poramboke Sarkari lands. The provisions of the Inams Abolition Act have thus no application. H) The Special Court under the Prohibition Act could not have and did not in fact declare the land to be inam nor directed the Inams Tribunal to issue ORC to the petitioners. In fact (in para-42 of the Judgment in LGC No. 62/89), the Special Court specifically and clearly held that an enquiry has to be made under the Inams Abolition Act. I) The appeal preferred to the 2nd respondent by the State is not belated. In the appeal petition it is clearly asserted that the 4th respondent learnt of issue of ORC (by the order of the 3rd respondent dt. 25.08.1994) only on 20.11.1994 and the appeal was filed on 21.11.1994, the very next day. The appeal is therefore filed within time from the date of knowledge. There is no question of any delay nor is there a need to condone the delay. J) The State is an interested, effected and aggrieved party since safeguarding public property is the function of the State. As a public servant this is the duty of the 4th respondent as well. When public property recorded as Government land illegally, wholly without jurisdiction and on a fundamental misconception of the provisions of the Inams Abolition Act, is considered as inam and ORC granted to the petitioners who have no entitlement therefor, the State is demonstrably aggrieved and is entitled to prefer an appeal under Sec. 24. Even the Special Court in LGC No. 62/89 had observed that the land belongs to the Government. However, since the occupation by the petitioners and their predecessors was found to be ‘permissive’, this would not constitute 'land grabbing', held the Special Court and dismissed LGC No. 62/89. K) Possession of the schedule lands was handed over to the 5th respondent (HUDA) along with other Government lands much earlier to the order dated 25.08.1994 of the Inams Tribunal – the 3rd respondent. Analysis :- The lynchpin of the petitioners' case is the judgment of the Special Court dated 07.09.1992 in LGC NO.62/89. It is the principal contention on behalf of the petitioners that the findings of the Special Court have become final are binding and conclusive on all authorities including the authorities under the Inams Abolition Act and on the State as well, since the LGC is filed by the State. Analysis of the orders; of the Special Court, the Inams Tribunal and of the 2nd respondent (the impugned order), is therefore apposite. Analyses of the judgment in LGC No. 62 of 1989 :- The State through the 4th respondent filed LGC No. 62/89 against the first petitioner and 17 others alleging that the respondents had encroached and raised structures in the Government land of 6414 Sq.Mts, in Sy.No. 102/1 (old) corresponding to TS No. 14/P, Ward-12, Bloc-A of Hakimpet village. Respondents 2 to 18 allegedly purchased smaller extents sold by the 1st respondent -Mallesha (the 1st petitioner herein). In defense Mallesha claimed that he and his father late Neeradi Muttaiah @ Muttiga were pattadars in possession of the schedule lands. Earlier, his grandfather Neerudi Sivaiah @ Sankaraiah and his father Muttaiah were in possession and occupation of this land in their own right as pattadar and were performing Neerudi service. Apart from this patta land, Sivaiah was assigned Ac.0.06 gts, of wet land as service inam in Sy.No. 102/2 for performing Neerudi service for Hakimpet village. Initially, Sy.No. 102/1 comprised Ac.323.29 gts of which Ac.48.38 gts, was patta land and the remaining Ac.274.31 gts, Government land. The petitioner's paternal grandfather Sivaiah was the pattadar of Ac.5.29 gts (in the non-government portion of the extent Ac.48.38 gts), in Sy.No. 102/1. Mallesha through his predecessors thus claimed possession and occupation since generations while admitting that he divided the schedule land into plots and sold them to several purchasers (including respondents 2 to 17 in the LGC), while retaining Ac.3.00. The other respondents claimed to be poor, landless persons who bona fide purchased plots sold by Mallesha believing his claim of title to the schedule land. All the respondents denied being land grabbers. The Special Court framed two principal issues: (a) Whether the Government or the respondents owned/had title to the lands in question; and (b) Whether the respondents were land grabbers. Findings of the Special Court on issue (a): On a critical analysis of the oral and documentary evidence; of the Surveyor and the M.R.O., the sketch plan of the concerned area, extracts of the TSLR of TS No.14, the classification of the land and the entries in the relevant Adangals and Pahanis, the Special Court recorded a clear finding that the State is the owner of the property and that the relevant Revenue records consistently describe this land as Government land classified as Kharij Khata, Poramboke or Kancha Sarkari, as the case may be. Analyzing the claim of the respondents (Mallesha and others) that the land was granted as inam for performing 'Neerudi' service (to the 1st respondent Mallesha and his predecessors), the Special Court found no material to conclude that Ac.48.38 gts, (out of the total extent Ac.323.23 gts, in old Sy.No. 102/1) was patta land and held that there was no evidence of a grant of inam for Neerudi service in favour of Mallesha or his predecessors. From the oral and documentary evidence marshaled on behalf of the respondents the Special Court however found that Mallesha was the son of Neerudi Muttiga and served as Neerudi for over 20 years prior to 1961 (Para-27). Analyzing the documentary evidence on behalf of the respondents (Ex. B4 to B13) in the light of the depositions of RW’s 3 to 5, while holding that Ex.B3 does not inspire confidence, the Special Court held that the evidence confirmed occupation of the land by Mallesha and his predecessors from 1957-58 and earlier; that the respondents' claim of grant of inam was to a mere extent of Ac.0.06 gts; that the ancestors of Mallesha appeared entitled for land though Neerudi service inams are not strictly inams within the meaning of the Inams Abolition Act and are not a regular grant with title deed issued but are a mere service condition for performing Neerudi service. In conclusion, the Special Court observed (Para-42) that the Government must make an inquiry under the Inams Abolition Act or the revenue authorities should resume the land by following due procedure as the lands were allowed permissive possession with the respondents towards emoluments for Neerudi service. At Para-43 of its judgment, the Special Court on point No.3 framed by it, held that as the first respondent though not the owner of the property is not in unlawful possession of the property is in permissive possession thereof, such possession does not constitute 'land grabbing'. The other respondents 2 to 18 (vendees of Mallesha) the Special Court held, were bona fide purchasers from Mallesha and cannot therefore be considered land grabbers either, within the meaning of the Prohibition Act. It requires to be noticed that even in Para-50 the Special Court recorded that though Mallesha and his ancestors have no title or title deeds to hold the land towards service being rendered as Neerudi or as persons who obtained the land for cultivation along with others, the occupation of this Government land was known to the village and revenue officers and appears to have been with their implied consent; hence they are not land grabbers. Mallesha (the 1st petitioner) presented a petition before the 3rd respondent seeking ORC in respect of the schedule lands, under the Inams Abolition Act, on 01.10.1993. Apprehending dispossession by the 5th respondent (the HUDA) pending consideration of the application for ORC, Mallesha filed W.P.No. 18283/93. On 08.12.1993 the writ petition was disposed of (at the stage of admission and without going into the merits of the case) granting stay of dispossession, for a period of one week while enabling the petitioner to file a representation to the 3rd respondent herein seeking stay of dispossession. By another order dated 04.12.1993 (in W.P.M.P.No. 24597/93 in W.P.No. 18283/93) this court extended the order (regarding dispossession earlier passed on 08.12.1993 in the writ petition) till disposal of the stay petition filed by Mallesha in the ORC proceedings before the 3rd respondent herein. The petitioners herein filed W.P.No. 25318/95 for a direction to the 2nd respondent herein to dispose of the appeal preferred by the State (against the order of the 3rd respondent dated 25.08.1994, granting ORC to the petitioners). At the stage of admission, by the order dated 10.11.1995 this writ petition was disposed of directing the 2nd respondent herein to dispose of the appeal within two months by a speaking order and directing the parties to maintain Status Quo with regard to possession till then. Analysis of the order of the 3rd respondent dt 25.08.1994:- The petitioners filed an application in Form No.1 [under Rule 5(2) of the AP (Telengana Area) Abolition of Inams Rules 1975] for grant of ORC in respect of the schedule lands. They claimed that the land was granted as a service inam for Neerudi service performed by their ancestors, since generations, a claim not asserted before the Special Court, as already noticed. The 3rd respondent in the order dt. 25.08.1994 after referring to the judgment of the Special Court dated 7.9.1992 (in LGC No. 62/89) and the order dt. 8.12.1993 in W.P.No. 18283/93 observed that the petitioners' application is a sequel to and based on the findings of the Special Court. The Inams Tribunal further observed that in view of the findings of the Special Court in LGC No.62/89 there was no option except to treat the land as inam within the meaning of Sec.2(1)(c) of the Inams Abolition Act; to treat the occupation of the petitioners as towards emoluments for rendering Neerudi service and the petitioners as inamdars. On this assumption the 3rd respondent concluded that the petitioners are inamdars as defined in Sec. 2(1)(b) of the Inams Abolition Act; the schedule lands are not communal or other lands falling under Sec. 4(1)(a);that none else is entitled to occupancy rights under Sections 5,6,7 and 8 of the Act; and that since the first applicant (Mallesha) had alienated certain plots of a total extent of Ac.2.00 to third parties under unregistered sale deeds, title would not pass to alienees; therefore the petitioners alone are entitled to ORC for the entire extent of land; and consequently declared the petitioners as occupants of the land u/Sec. 4(2) and directed issue of ORC in their favour. Analysis of the impugned order dated 16.12.1995 :- The 1st respondent entertained and allowed the appeal by the State. Two issues were framed for consideration – (a) whether the land is 'inam' or Government land; and (b) whether the 1st respondent (the 1st petitioner) is entitled to ORC. The appellate authority examined the records of the initial survey conducted in 1330-F; the revised survey in 1334-F; the Inam Takhta of Hakimpet village; the Pahanis in respect of the schedule lands for the years 1951-52, 1952- 53, 1960-61, 1966-67, 1970-71, 1974-75, 1975-76 and 1981-82; the Faisal Patties for the years 1950,1951, 1953 to 1955, 1957 and 1960; and the Town Survey Land Register. On analyses of the above records the appellate authority found that both under the initial Survey Sethwar of 1330-F for Sy.No.92 and the revised survey conducted during 1334-F where Sy.No. 92 was renumbered Sy.No. 102, the land is recorded as Poramboke Sarkari; that the Inam Taktha of Hakimpet village prepared in 1977 does not enumerate Sy.No.102; that the pahanies and the revenue records during the years 1951-52 to 1981-82 record and describe the land in Sy.No. 102/1 as Poramboke in the pattadar column; that the name of the father Muttaiah is shown as occupant only in the Pahani for 1966- 67 and of Mallesha in 1969-70 and 1974-75; that Mallesha's name is recorded as an 'unobjectionable encroacher' in the field inspection remarks of the Revenue Inspector; and that verification of the Faisal Patties of 1951, 1953, 1954 to 1958, 1960, 1966, 1974, 1975, 1980 and 1981 show that Sivai Jamabandi and penalty was imposed on the encroachers. The appellate authority held that the schedule lands in Sy.No. 102/1 are consistently recorded and delineated as Poramboke Sarkari since 1330-F and there was no record to treat it as inam. The appellate authority observed that the 3rd respondent-the Inams Tribunal failed to examine or analyze any document nor is there any discussion or analysis justifying the conclusion that the schedule land is an inam and the petitioners inamdars, entitled to grant of ORC. The appellate authority also observed that after town survey, TS Numbers have substituted the old Sy. Nos. and the ORC does not disclose or record any TS No, Block No, Ward No, nor the boundaries of the land in question. The appellate authority recorded the