THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.15513 of 2010 DATED: 06.10.2010 Between : M. Jaya Satyawathi Devi … Petitioner And 1. Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam, Simhachalam, Visakhapatnam, Rep. by its Executive Officer., and another. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.15513 of 2010 ORDER : This writ petition is filed for a Mandamus declaring that the petitioner is having lawful possession with absolute rights and title to the land admeasuring Ac.7.04 cents in Sy.No.275/F of Adivivaram Village of Visakhapatnam Rural Mandal, Visakhapatnam District and that the 1st respondent or anybody acting on their behalf have no jurisdiction to interfere with the possession and enjoyment of the rights of the ownership of the petitioner and her successors-in-interest. The facts, in brief, are as under: By G.O.Ms.No.275, dated 29.03.1993 the Government in exercise of the powers conferred by Section 75 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short, ‘the Endowments Act’) accorded permission to the Executive Officer of the 1st respondent Devasthanam for conveyance of Melavaram Rights in respect of Ac.7.04 cents of land in Sy.No.275/F of Adivivaram Village in favour of the writ petitioner on receipt of 1/3rd of sale value or Basic Register Value whichever is higher. Pursuant thereto, the petitioner paid Rs.17,03,681/- on 09.08.1994. Thereafter a joint inspection was made by the Executive Officer of the 1st respondent Devasthanam and the Mandal Revenue Officer, Visakhapatnam on 26.05.1995 and the exact boundaries of the Ac.7.04 cents of land were identified and delineated. The said land was again measured by the Mandal Deputy Surveyor, Visakhapatnam and the Surveyors of Devasthanam in the presence of Village Administrative Officer, Adivivaram and Revenue Superintendent of the 1st respondent Devasthanam and basing on the same a revised sketch was prepared on 26.5.1995 and the Executive Officer of the 1st respondent got the peg marks made on 26.5.1995 itself. Thereafter on 15.6.1995 the Executive Officer of the 1st respondent issued a No Objection Certificate (NOC) duly conveying the Melavaram rights in favour of the petitioner for registration of the land in question as mentioned in the sketch annexed to the said certificate. The above said facts are not disputed by the respondents. It is also not in dispute that the petitioner has been in possession and enjoyment of the land in question. The material available on record further shows that though the Commissioner of Endowments, A.P., Hyderabad made a request to withdraw the permission accorded in G.O.Ms.No.275, dated 29.03.1993, the Government vide Memo dated 5.2.2004 rejected the request of the Commissioner of Endowments observing that it would lead to unsettle the things already settled after a gap of 10 years. In spite of the same, as the 1st respondent did not allow the petitioner to carry on the development activities on the land in question and also attempted to dispossess the petitioner and her vendees forcibly, the present writ petition has been filed with the above said prayer. It is also pleaded in the writ petition that on 2.2.2002 the petitioner presented two sale deeds for registration and again on 3.2.2002 she had presented two more sale deeds for registration. As the 2nd respondent herein had declined to register the documents stating that the 1st respondent was objecting the registration, the petitioner was constrained to file W.P.No.7074 of 2002 in which by order dated 25.4.2002 in WPMP.No.8860 of 2002 this Court directed the 2nd respondent herein to register the said documents. Accordingly the sale deeds have been registered and released. In the counter-affidavit dated 10.7.2010 filed on behalf of the 1st respondent it is contended that conveyance of the land belonging to the 1st respondent Devasthanam by collecting 1/3rd value of the land is contrary to the provisions of the A.P. (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (for short, ‘Inams Abolition Act’ )as well as the provisions of the Endowments Act. While submitting that mere grant of NOC by the 1st respondent did not confer absolute ownership rights in favour of the petitioner, it is contended that the petitioner is entitled only to cultivate the land as per Section 8 of Inams Abolition Act, but cannot exercise the rights of ownership. It is pleaded that having regard to the legal position it was decided by the Government to cancel some of the orders passed earlier including the order in favour of the petitioner conveying the Melavaram rights. The 1st respondent submitted proposals for the same and the orders are awaited from the Government. It is also contended that the entire hill covered by Sy.No.275 of Adivivaram was notified as Green Belt Area in the Master Plan of Visakhapatnam Urban Development Authority (VUDA) and the interim orders issued by this Court in W.P.No.3184 of 2009 not to grant any permission for constructions in the Green Belt Area are in operation. It is alleged that contrary to the said orders the petitioner is trying to take up construction and the same would defeat the object of Green Belt concept. In the additional counter-affidavit dated 19.9.2010, it is further explained that the petitioner’s husband by name M. Venkanna Dora has accorded permission on 10.7.1989 to cultivate and enjoy an extent of Ac.7.04 cents belonging to the 1st respondent Devasthanam on payment of land revenue of Rs.9-12 Anas and thus M. Venkanna Dora and after his death his legal heirs were entitled to enjoy permanent occupancy rights. It is also contended that G.O.Ms.No.275, dated 29.03.1993 according permission to the Executive Officer of the 1st respondent Devasthanam for conveyance of Melavaram rights in respect of the above said land in favour of the writ petitioner on receipt of one-third sale value was contrary to the provisions of Section 75 read with Section 80 (1) (c) of the Endowments Act and therefore the No Objection Certificate, dated 15.6.1995 issued by the 1st respondent on the basis of G.O.Ms.No.275, dated 29.03,.1993 was null and void. It is also contended that there is no concept of Melavaram and Kudivaram rights in respect of an Inam land as defined under Section 2 (c) of the Inams Abolition Act read with the definition of ‘ryoti land’ defined under Section 3 (16) of A.P. (Andhra Area) Estates Land Act, 1908. Thus it is contended that the petitioner did not get any right by obtaining No Objection Certificate from the 1st respondent in respect of Melavaram rights nor by virtue of the alleged admissions by the Devasthanam. Moreover the petitioner did not obtain any ryotwari patta under Section 7 (1) read with Section 4 (2) (b) of the Inams Abolition Act nor obtained any registered deed effecting sale and therefore the petitioner is in possession only as an encroacher. It is also stated that as per the Gilman survey conducted in 1903 Survey No.275 is shown as poramboke, measuring an extent of Ac.5279.57 cents (Peddakonda). Sy.No.275-B Zeroyti Mettu measuring an extent of Ac.0-19 cents (Amani) and Sy.No.275-C Zeroyti Mettu, measuring an extent of Ac.0-24 cents (Amani). There is no sub division number 275/F as such, in the Gilman Register, describing the nature of the land and also extent of the said land. Further that there is no survey conducted subsequently to the above mentioned Gilman survey. Hence any sub divisions after 275-C, are all prepared by the private individuals to suit their convenience and they are not given by any officials pursuant to any survey conducted subsequent to the Gilman survey. So far as the disputed land is concerned, it is identified as part of the Survey No.275-A for the purpose of issuing no objection certificate. Hence the allegation in paragraph 12 of the reply affidavit that it only refers Survey No.275 of Adivivaram measuring Ac.5279.57 cents and the land which is subject matter of this writ petition Ac.7.04 cents which is separate survey number, namely 275/F which is clear from the G.O.Ms.No.275, dated 29.3.1993, is not correct and tenable. In the counter-affidavit filed on behalf of the 2nd respondent, it is contended that by virtue of Section 22-A of Registration Act as amended by A.P. Amendment Act No.19 of 2007 w.e.f. 20.06.2007 registration of certain documents have been prohibited. The Commissioner of Endowments, by letter dated 13.11.2008 communicated the list of endowment lands owned by the 1st respondent Devasthanam in which Sy.No.275 with an extent of Ac.5,279-57 cents is also figured at Sl.No.22 and as such the said land including the land claimed by the petitioners is prohibited from registration under Section 22-A (i) (c). I have heard the learned counsel for both the parties. The learned counsel for the petitioner, while reiterating the admitted facts, vehemently contended that by virtue of the sanction accorded in G.O.Ms.No.275, dated 29.3.1993, which became final and was also acted upon by issuing the NOC dated 15.6.1995 on receiving the payment of Rs.17,03,681/- from the petitioner, absolute rights of ownership have been acquired by the petitioner in respect of the land in question and therefore the respondents cannot interfere in any manner whatsoever either with the possession of the petitioner or with her rights of alienation. On the other hand, the learned counsel appearing for the 1st respondent contended that the order in G.O.Ms.No.275, dated 29.3.1993, which was granted in violation of Sections 75 and 80 of the Endowments Act, the NOC dated 15.6.1995 issued by the 1st respondent was null and void and therefore the petitioner did not acquire any rights of ownership. As noticed above, the title claimed by the petitioner in respect of the land in question is based upon G.O.Ms.No.275, dated 29.03.1993 under which the 1st respondent was accorded permission for conveyance of Melavaram rights in favour of the petitioner. The petitioner had admittedly paid a sum of Rs.17,03,681/- towards consideration as stipulated in G.O.Ms.No.275, dated 29.03.1993 and thereafter the land was surveyed, identified by the officials of the 1st respondent as well as the officials of the Revenue Department and a sketch duly singed by all the concerned was issued on 26.5.1995. The fact that the then Executive Officer of the 1st respondent had issued a No Objection Certificate dated 15.6.1995 is also not in dispute. It is also clear from the material available on record that the proposals subsequently made by the Commissioner of Endowments to withdraw the order passed in G.O.Ms.No.275, dated 29.3.1993 were rejected by the Government vide Memo dated 5.2.2004. In the light of the above said admitted facts, the petitioner contends that she acquired absolute rights of ownership in respect of the property in question and therefore the action of the 1st respondent in preventing the petitioner and her vendees from carrying on developmental activities on the land in question is arbitrary and illegal. However the 1st respondent disputes the rights of ownership claimed by the petitioner contending that the land in question being an inam land vested with the 1st respondent Devasthanam and the petitioner is entitled only to enjoy the occupancy rights as provided under the provisions of the Inams Abolition Act. It is also contended that G.O.Ms.No.275, dated 29.3.1993 as well as the consequential NOC dated 15.6.1995 being contrary to the provisions of the Endowments Act are null and void and did not transfer any valid rights in favour of the petitioner. It is not disputed before this Court that the land in question situated in Sy.No.275 part of Adivivaram Village forms part of the inam land and the 1st respondent Devasthanam is the inamdar. The material available on record shows that after conducting an enquiry as provided under Section 3 (3) of the Inams Abolition Act, the Mandal Revenue Officer, Visakhapatnam, passed an order dated 4.7.1989 in respect of the land in Sy.No.275 of Adivivaram village. A supplemental enquiry under Section 3 (3) of the Inams Abolition Act was taken up in respect of a portion of the land in Sy.No.275 part of Adivivaram village including the land in question possessed by the writ petitioner. In the said enquiry, the writ petitioner, based on Patta No.243 dated 10.7.1942 issued to her husband late M. Venkanna Dora in respect of the land in question, requested to grant a ryotwari patta in her favour as she is continuing in possession being the successor-in- title of late M. Venkanna Dora. While observing that late Venkanna Dora was accorded permission only to cultivate and enjoy the land in question on payment of land revenue, the Mandal Revenue Officer, Visakhapatnam, by order dated 10.7.1989 declared that the land in question being cultivable land belonged to the 1st respondent Devasthanam – the Inamdar, but in the effective possession of the petitioner with permanent occupancy rights by virtue of Patta No.243, dated 10.7.1942 issued by the then Estate Collector, Vizianagaram. The above said order dated 10.7.1989 which is also relied upon by the petitioner shows that the petitioner has been continuing in possession and enjoyment of the land in question with permanent occupancy rights. Admittedly no registered deed has been effected in favour of the petitioner in pursuance of the NOC dated 15.6.1995 granted by the 1st respondent. However the petitioner claims absolute rights of ownership by virtue of G.O.Ms.No.275, dated 29.3.1993 whereunder the Government in exercise of the powers conferred by Section 75 of the Endowments Act accorded permission for conveyance of Melavaram rights in respect of the land in question in favour of the petitioner on receipt of one-third sale value or Basic Register whichever is higher. It is true that the said G.O.Ms.No.275, dated 29.3.1993 is subsisting as on today and the request of the Commissioner of Endowments for withdrawal of the said permission was rejected by the Government vide Memo dated 5.2.2004. The fact that G.O.Ms.No.275, dated 29.3.1993 has been acted upon and having received the one-third sale value paid by the petitioner, the 1st respondent issued No Objection Certificate dated 15.6.1995 for registration of the land is also not disputed before this Court. However, the contention advanced on behalf of the 1st respondent is that the permission granted under G.O.Ms.No.275, dated 29.3.1993, is illegal and the consequential NOC granted is null and void since the same are in contravention of the provisions of the Inams Abolition Act as well as the Endowments Act and therefore except the rights of occupancy the petitioner did not acquire any absolute rights of ownership. It is also the specific case of the 1st respondent that the concept of Melavaram and Kudivaram rights is not applicable at all to an inam land and therefore the question of conveyance of Melavaram rights to the petitioner did not arise at all. Per contra, it is contended on behalf of the petitioner that as the rights conveyed in favour of the petitioner pursuant to G.O.Ms.No.275, dated 29.3.1993 attained finality, it is not open to the respondents to unsettle the rights acquired by the petitioner merely on the vague plea that the fresh proposal alleged to have been made in 2006 by the 1st respondent for cancellation of G.O.Ms.No.275, dated 29.3.1993 is pending, particularly in view of the fact that such request was already rejected in 2004. It is evident from the above noticed rival contentions that the absolute rights of ownership claimed by the petitioner are very much in dispute. Such disputed question relating to title cannot be enquired into and adjudicated upon by this Court in a writ petition under Article 226 of the Constitution of India. As the title disputes in respect of any immovable property cannot be resolved in the summary proceedings under Article 226 of the Constitution of India, I am not inclined to express any opinion on the rival claims made by the writ petitioner and the 1st respondent and therefore the declaration as sought by the petitioner with regard to her title/absolute rights of ownership to the land in question cannot be granted. However the petitioner is admittedly in continuous possession of the land in question right from the year 1942. As per the order dated 10.7.1989 passed by the Mandal Revenue Officer, Visakhapatnam under Section 3 (3) of the Inams Abolition Act, the petitioner is entitled to permanent occupancy rights in respect of the land in question and the rights so acquired by her are not disputed by the respondents. As per Section 8 (1) of the Inams Abolition Act, the said right of permanent occupancy shall be heritable and shall be transferable by sale, gift or otherwise. Having regard to the specific provisions under Sections 8 and 9 of the Inams Abolition Act, the 1st respondent cannot be permitted to interfere or meddle with the possession and enjoyment of the petitioner or her vendees/successors-in-interest over the land in question in any manner whatsoever highhandedly or forcibly. So far as the action of the 2nd respondent in objecting the registration of the sale deeds executed by the petitioner in respect of the land in question is concerned, as noticed above under Section 8 (1) of the Inams Abolition Act the rights acquired by the petitioner are transferable by sale, gift or otherwise. Hence, the petitioner is entitled to transfer her rights in accordance with the provisions of the Inams Abolition Act and the 2nd respondent cannot object registration of the documents, if any, executed by the petitioner on the ground of the title dispute raised by the 1st respondent or on the ground that the 1st respondent had not executed any registered deed in her favour pursuant to G.O.Ms.No.275, dated 29.3.1993. In the counter-affidavit filed by the 2nd respondent, it is contended that after the amendment to Section 22-A of the Registration Act, 1908, by A.P. Amendment Act 19 of 2007 w.e.f. 20.06.2007 the Commissioner of Endowments by letter dated 13.11.2008 communicated the list of endowment lands owned by the 1st respondent Devasthanam under which the entire Sy.No.275 with an extent of Ac.5279.57 cents has been shown at Sl.No.22 and as such the registration of the land in question is prohibited under the provisions of Section 22-A(1)(c) of the Registration Act, 1908, as amended by A.P. Amendment Act 19 of 2007. The stand taken in the counter-affidavit of the 2nd respondent has been disputed by the petitioner and in her Reply affidavit it is stated that the land in question measuring Ac.7.04 cents has been sub-divided even prior to the issuance of G.O.Ms.No.275, dated 29.3.1993 and the sub-division as Sy.No.275/F has been accepted in G.O.Ms.No.275, dated 29.3.1993 and the No Objection Certificate dated 15.6.1995 issued by the 1st respondent and all other subsequent proceedings. Thus it is contended that the land in possession of the petitioner situated in Sy.No.275/F cannot be said to have been included in the list of properties dated 13.11.2008 furnished by the Commissioner and consequently there cannot be any prohibition of registration. A copy of the list enclosed to the Commissioner’s letter dated 13.11.2008 has been placed before this Court. As could be seen, Sl.Nos.22, 665 and 666 of the List related to Sy.Nos.275, 275/B and 275/C and there is no mention about Sy.No.275/F. However, it is vehemently contended by the learned counsel for the 1st respondent that there is no sub-division as Sy.No.275/F and the land in question forms part of Sy.No.275/A. As a matter of fact, the list enclosed to the Commissioner’s letter dated 13.11.2008 did not include 275/A and at any rate in view of the sanction accorded by the Government in G.O.Ms.No.275, dated 29.3.1993 as well as the subsequent proceedings of the 1st respondent Devasthanam in which the land in question has been consistently shown as situated in Sy.No.275/F, the plea now taken by the 1st respondent in the counter-affidavit appears to be without basis. Even otherwise since the 1st respondent did not dispute the petitioner’s rights of permanent occupancy which are transferable by sale, gift or otherwise under Section 8 (1) of the Inams Abolition Act, the objection raised by the 2nd respondent on the basis of Section 22-A (1) (c) of the Registration Act, 1908 does not appear to be tenable. Even the interim order passed in W.P.No.11812 of 2005 by a Division Bench of this Court prohibiting sale of endowments lands in my considered opinion cannot be an impediment so far as the transfer of the land in question is concerned, in view of Section 8 (1) of the Inams Abolition Act. For the aforesaid reasons, the Writ Petition is disposed of with directions as under: (1) The 1st respondent shall not interfere with the possession and enjoyment of the petitioner in respect of the land in question in any manner whatsoever without following due process of law. (2) The 2nd respondent shall receive the documents relating to the land in question as and when presented by the petitioner / her successors-in-title and register the same in accordance with law. The Writ Petition is accordingly disposed of. No costs. _____________ G. ROHINI, J. Dt. 06.10.2010 gbs