IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR W.P.Nos. 260 & 2111 OF 1998 WRIT PETITION NO : 260 of 1998 Between: The Revenue Divisional Officer, State of Andhra Pradesh Hyderabad. ..... PETITIONER AND 1 Dundoo Ravi Kumar s/o D.Bala Narasaiah c/o M/s M.P. Bright Steel, 1-8-20/A/29 Minister Road, Secunderabad. 2 Registrar Special Court Under A.P Land Grabbing (Prohibition) Act, 1882 .....RESPONDENT(S) 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 issue an appropriate writ, order or direction particulary a writ in the nature of certiorari, calling for the records relating to the order dated 5/10/1994 in L.G.C. NO.10/90 on the file of the speical Court under A.P Land Grabbing (Prohibition) Act, 1982 and quash the same and allow the L.G.C by evicting the respondent no.1 and pass such other order or orders as this Hon'ble Court may been deem fit and proper in the circumstances of the case. Counsel for the Petitioner: ADVOCATE GENERAL Counsel for the Respondent: Mr. D. Prakash Reddy, Advocate MR.S.NIRANJAN REDDY and WRIT PETITION NO : 2111 of 1998 Between: The State of Andhra Pradesh rep. by its Revenue Divisional Officer Hyderabad. ..... PETITIONER AND 1 Rajesh S/o.Ramesh Dhanda H.No.142/15, Penderghast Road, Secunderabad 2 Smt.Usha Kiran Dhanda W/o.Ramesh Dhanda H.No.142/15, Penderghast Road, Secunderabad 3 Sri.Babu Rao S/o late Kanthaiah R/o.8-2-335, Kummarguda, Secunderabad-500 003 4 Sri.R.Raghavulu S/o.Rajaiah 8-2-335, Kumarguda, Secunderabad-500 003 5 A.Raghavulu S/o.Seethaiah 8-2-335, Kumarguda, Secunderabad-500 003 6 Mohd.Ibrahim S/o. not known 1-8-30/B, Minister Road, Secunderabad 7 Mallaiah S/o.Madaiah 1-8-30/1/D, Minister Road Secunderabad 8 Shanker Singh, S/o.not known 3-6-150, Himayathnagar, Hyderabad. 9 Smt.R.Suryakala W/o.late Ramakrishna 12-11-138 to 142, Namalagundu, Secunderabad 10 Smt.Nagamani, W/o.R.Chilakaiah 12-11-138 to 142 Namalagundu Secunderabad 11 Master R.Sachin Vas Babu S/o.late R.Ramakrishna 12-11-138 to 142 Namalagundu Secunderabad 12 Kum.Anuradha D/o.late R.Ramakrishna 12-11-138 to 142 Namalagundu Secunderabad 13 Kum.Sharathi D/o.late R.Ramakrishna 12-11-138 to 142 Namalagundu Secunderabad 14 Kum.Bharani D/o.late R.Ramakrishna 12-11-138 to 142 Namalagundu Secunderabad 15 The Special Court under A.P.Land Grabbing (Prohibition) Act, at Hyderabad B.R.K.Buildings, Hyderabad .....RESPONDENT(S) 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 issue an appropriate Writ, order or direction particularly a Writ in the nature of Certiorari, calling for the records relating to the order dated 5/10/1994 in L.G.C.No. 104/90 on the file of the special court under A.P. Land Grabbing (Prohibition) Act, 1982 and quash the same and allow the L.G.C by evicting the respondents and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circustances of the case. Counsel for the Petitioner: ADVOCATE GENERAL Counsel for the Respondents: Mr. D. Prakash Reddy, Advocate Mr. M.V. S. Suresh Kumar, Advocate Mr. Pratap Narayan Sanghi, Advocate THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos. 260 & 2111 OF 1998 COMMON ORDER: (Hon’ble Sri Justice Ghulam Mohammed) 1. These two writ petitions are filed by the State represented by Revenue Divisional Officer, Hyderabad assailing the legality and validity of the judgments dated 5.10.1994 rendered by the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act at Hyderabad (hereinafter referred to as “the Special Court”) in LGC No. 10 of 1990 and LGC No. 104 of 1990 respectively. By the impugned judgments, the Special Court dismissed both the LGCs filed by the State holding that the respondents were not land grabbers and they did not come within the purview of the A.P. Land Grabbing (Prohibition) Act, 1982 (for short “the Act”). Since the petitioner’s case as well as respondents’ case in both the LGCs is common and the vendor of respondents is same in both the LGCs, these two writ petitions are disposed of by this common order. 2. LGC No. 104 of 1990 was filed under Section 8 (1) of the Act by the State for a declaration that the respondents are the land grabbers of Government land to an extent of 4147 sq. metres or 5018 sq. yards in S.No. 43/P correlated to TS No. 3, 4 and 5 Block-G, Ward-100 situated at Bholakpur, Secunderabad Mandal, Hyderabad district and they be evicted therefrom. According to the concise statement filed along with LGC, Bholakpur village in Secunderabad Mandal of Hyderabad district was surveyed in 1358 Fasli under the provisions of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 F and in terms of Section 17 of the said Act, if any person having lawful rights is aggrieved by the entries of the above survey was at liberty to approach the authorities for correction within two years from the date of commencement of the above said survey. Similarly town survey was conducted in the year 1965 and notified in the Gazettee published in the year 1976 under the provisions of the A.P. Survey & Boundaries Act, 1923 and according to the said survey, revenue Sy.No. 43 of Bholakpur village is correlated to the present T.S.Nos. 3, 4, 5, 6 and 7, Block G, Ward-100 of Bholakpur village which is recorded as Government land and in terms of Section 14 of the A.P. Survey & Boundaries Act, 1923 any person who is aggrieved by the entries of the notified Town Survey has to obtain a decree from city civil court in his favour within three years from the date of notification of survey. The respondents did not take any steps in terms of both the Acts. The respondents constructed a big hall and leased out to the present occupiers for commercial purpose. Notices under the A.P. Land Encroachment Act were issued and served on the respondents, but so far no response was given to the said notices. 3. Counters were filed by the respondents. It is contended in the counter filed by respondents 1 and 3 that the land in question originally belonged to Mohiddin Baig @ Makhan Mian who sold it to Ramachandra Bhangay for a consideration of Rs.3,000/- on 1.10.1956. During his life time he borrowed amounts from the Government and A.P. State Financial Corporation and died leaving the family in debts. The family sold a portion of the area of 773 sq. yards, demarcated as plot No.8 to Smt. Usha Kiran Dhanda for Rs.11,604/- on 20.5.1965. Similarly another extent of 1146 sq. yards was sold to Smt. Saraswati Devi for Rs.17,190/- on 20.5.1965. These respondents also purchased 1919 sq. yards for adequate and valid consideration and paid the substantial sale consideration to the Government and to the State Financial Corporation. These respondents and their predecessors in title have also perfected their title by adverse possession. Therefore, these respondents are not land grabbers. 4. The respondent No.7 states in his counter that he is one among the respondents who purchased the property. It is stated that originally the land belonged to one Mr. Moinuddin Baig @ Maccan Miayan who sold the land to Ramchandra Bhangay in 1956 and from whom one Chandrakanth s/o Ratilal purchased in 1962 through a registered sale deed bearing document No. 1072 of 1962 and in turn he sold the said land to the respondents through a registered sale deed bearing document No. 93 of 1966. Since then the respondents are in possession and enjoyment of the said land. During the last 30 years and even earlier the Government did not claim the title nor objected to the title of these respondents or their vendors. After purchase, the respondents obtained municipal permission for construction of structures and were paying municipal taxes as well as non-agricultural taxes and land revenue. As such they cannot be called as land grabbers. 5. The respondent No.8 contended in his counter that none of the ingredients of Land Grabbing as defined under Section 2 of the Act are present in this case. This respondent purchased an extent of 1442 sq. yards of land along with Shahazadi Begum and Ameena Begum on 8.10.1956 under a registered sale deed from Mirza Mohiuddin Baig son of Mirza Abdulla Baig for Rs.5,000/-. This respondent subsequently constructed godowns in a phased manner with municipal permission and at present there are five portions in the building. The Government was colleting land revenue and also non-agricultural land tax from this respondent showing him as pattadar. This respondent has been in possession for 34 years of the land in his own right without interruption adverse to the Government and he has a clear title by adverse possession. 6. On the basis of the above pleadings, the following issues were framed, 1) Whether the petitioner is the owner of the petitioner schedule property? 2) Whether the rival title set up by the respondent is true and valid? 3) Whether the respondents are land grabbers within the meaning of the Act? 4) To what relief? ADDITIONAL ISSUES:- 1) Whether the respondents 1, 3 and 8 have perfected their title to the sites in their possession by adverse possession? 2) Whether the petitioner is estopped from claiming title to the petition schedule property? 7. On behalf of the applicant-State, PWs 1 to 5 were examined and Exs.A1 to A50 were marked. The respondents examined R.Ws 1 to 3 and marked Exs.B1 to B66. 8. There is another case being LGC No. 10 of 1990 which was also filed by the State represented by Revenue Divisional Officer, Hyderabad under Section 8 (1) of the Act. It is averred in the petition that Sy.No. 43 of Bholakpur village in the limits of Secunderabad Mandal, correlated to T.S.No. 6 of Block-G, Ward No. 100 of Bholakpur is classified as Government land as it is Shikam Talab of Hussain Sagar. The respondent has illegally occupied an extent of 1692 sq. yards and constructed a pucca commercial building unauthorisedly which is bearing Mulgi No. 1-8-28 in Ministers’ road. Hence the petitioner sought eviction of the respondent terming as land grabber. 9. The respondent filed a counter contending that the petition schedule property originally belonged to Mirza Mohiuniddin Baig @ Makkan Mian and he sold it to one Abdul Gafoor under a registered sale deed dated 30.4.1954. The petition schedule site is a part of plot No. 7 of Nallagutta plots. The father of respondent by name Dandu Narasimha purchased the petition schedule site from Abdul Gaffur under a registered sale deed dated 8.7.1957. Buildings were constructed over the petition schedule property after obtaining permission from Municipal Corporation on 26.6.1962 and 5.11.1963. The Municipal Corporation was collecting property tax for the said buildings and the Revenue Department was also collecting non-agricultural assessment tax from the respondent in respect of petition schedule property from 1963 onwards. The respondents submits that the petition schedule property is not the Government land and as such the respondent is not a land grabber. Even the respondent has perfected his title to the petition schedule property by way of adverse possession as he and his predecessors in title have been in continuous possession of the said property right from 30.4.1954. 10. On the basis of the above pleadings, the following issues were framed, 1) Whether the petition schedule land belongs to the Government? 2) Whether the respondent is a land-grabber within the meaning of the Act? 3) Whether the respondent has perfected his title by adverse possession? 4) To what relief? 11. The applicant-State examined P.Ws. 1 to 5 and marked Exs.A1 to A33. On behalf of the respondent, R.W.1 was examined and Exs.B1 to B19 were marked. 12. After considering the rival contentions of both the parties and upon perusing the oral and documentary evidence adduced by both the parties, the Special Court dismissed both the LGCs holding that the respondents are not land grabbers and they did not come within the meaning of ‘land grabber’ and held that the respondents have perfected their title by way of adverse possession and the Government recognized their possession through some documents. The Special Court also held that although payment made under Exs.B35, B36 and B37 is noted as Sivaijamabandi, but none of the witnesses was examined on behalf of the Government to explain as to how payment received towards land revenue was shown as Sivaijamabandi for the years 1963-1964, 1964-65 and 1965- 66 under Exs.B33 and B34 receipts and the respondents cannot be held responsible for what was written behind their back in Exs.B35 to B37. 13. The learned Advocate General appearing for the petitioner-State contends that the entire revenue records clearly show that the land in question is a Government land and it is a tank bed land and town survey was conducted under A.P. Survey and Boundaries Act, 1923 which revealed that it is a Government land and it was notified inviting objections, but no objections were received and no challenge was made to the surveys conducted over the land in question. He contends that the respondents did not take any steps at any point of time either to challenge the town survey report in terms of Section 87 of the A.P. (T.A.) Land Revenue Act, 1317 F or file a suit in terms of Section 14 of the A.P. Survey and Boundaries Act, 1923 for correction of survey records and as such the notification had attained finality. He further contends that the entire records filed by the Government clearly indicate prima facie title of the Government to the land in question and the respondents have also paid land revenue under Exs.B33 to B36 which show that they have acknowledged the title of the Government and they themselves have filed Exs.B29 to B34 being Sivaijamabandi acknowledging the title of the Government to the land in question and the petitioner-State also issued notices under Section 7 of the A.P. Land Encroachment Act to the respondents describing them as land encroachers and without considering these aspects, the Special Court has committed an error and the findings reached by it, are based on surmises and conjectures and it has committed a serious jurisdictional error in not holding that it is a Government land. The learned Advocate General has relied upon a decision of the Supreme Court reported in Krishnamurthy’s Setlur (dead) by LR Vs. O.V. Narasimha Setty and others [1] with respect to plea of adverse possession taken by the respondents and in para-12 it held, “Section 27 of the Limitation Act, 1963 operates to extinguish the right to property of a person who does not sue for its possession within the time allowed by law. The right extinguished is the right which the lawful owner has and against whom a claim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession. The question whether possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the court.” 14. With regard to payment of sivaijamabandi, he relies on a decision of the Supreme Court reported in Bedadala Akki Reddy v. Govt. of A.P. [2], and in para-4 the Supreme Court held, “4. The two Tribunals as well as the High Court, on the facts, found that the appellant was a “land grabber” and there has been land grabbing by him. In doing so, particularly it was noted that the appellant himself applied for assignment of the land to the Revenue Authorities and had paid taxes under the Andhra Pradesh Land Encroachment Act, 1905, that is “sivai jamabandi” penalty for being in unauthorised occupation and cultivation of the land. From the facts found it is clear that the appellant has neither claimed to be the owner of the land nor has he claimed his entitlement to be in possession of the land in accordance with law. The fact is that he had no right over the land, he has been in unauthorised possession and had paid “sivai jamabandi” and penalty being in unauthorised occupation. The fact that the appellant had the intention to illegally occupy the land can be gathered from the facts which were rightly found so by the Tribunals, as affirmed by the High Court. The decision in Gouni Satya Reddi (2004) 7 SCC 398) does not help the appellant. That was a case where the appellant entered the land as a purchaser on the basis of sale deed which was good enough to show that he did not enter the land with a view to illegally take possession. That makes a difference.” 15. The learned Advocate General also relies on a decision of the Supreme Court in Mahalaxmi Motors Ltd. v. Mandal Revenue Officer, [3] and it held, “40. The Tribunal being possessed of extensive jurisdiction, subject of course to fulfillment of the conditions precedent, for initiation of the proceeding, was entitled to go into all issues. We have furthermore to bear in mind that the definition of “land grabber” is not only restricted to the party to the proceeding, but also includes his predecessor-in-interest. Once the land is held to be a government land, the logical corollary thereto would be that subject to the law of limitation and prescription, the State would not lose the said right to the opposite party. 41. It may be true that absence of lawful entitlement by itself may not be sufficient to pass a judgment and decree in favour of the State and against the land grabber, but also it must be shown that he had taken illegal possession thereof. 42. The Bench in Konda Lakshmana Bapuji (2002) 3 SCC 258) has applied both the broader and narrow meanings of the said expression. It would not, however, mean that all the tests laid down therein are required to be satisfied in their letter and spirit. What is necessary to be proved is the substance of the allegation. The proof of intention on the part of a person being his state of mind, the ingredients of the provisions must be considered keeping in view the materials on records as also circumstances attending thereto. What would be germane for lawful entitlement to remain in possession would be that if the proceedee proves that he had bona fide claim over the land, in which event, it would be for him to establish the same. 43. In Konda Lakshmana Bapuji this Court has categorically held that the requisite intention can be inferred by necessary implication from the averments made in the petition, the written statement and the depositions of witnesses, like any other fact. The question which must, therefore, have to be posed and answered having regard to the claim of the land grabber would be that, if on the face of his claim it would appear that he not only had no title, but claimed his possession only on the basis thereof, the same must be held to be illegal. The question in regard to lawful entitlement of the proceedee, therefore, for invoking the charging section plays an important and significant role. 44. We would like to add that the person’s purported belief that he is legally entitled to hold the land and his possession is not otherwise illegal must also be judged not only from the point of time when he entered into the possession or when he had acquired the purported title but also from the point of view as to whether by reason of determination of such a question by a competent court of law, he has been found to have no title and consequently continuance of his possession becomes illegal. If the proceedee against whom a proceeding has been initiated under the provisions of the said Act is entitled to raise the question of adverse possession, which being based on knowledge of a lawful title and declaration of the hostile title on the part of the person in possession, there does not appear to be any reason as to why knowledge of defect in his title and consequently his possession becoming unlawful to his own knowledge would not come within the purview of the term “land grabbing” as contained in Section 2(e) of the Act. The provisions of the Act must be construed so as to enable the tribunal to give effect thereto. It cannot be construed in a pedantic manner which if taken to its logical corollary would make the provisions wholly unworkable. Only because a person has entered into possession of a land on the basis of a purported registered sale deed, the same by itself, in our considered opinion, would not be sufficient to come to the conclusion that he had not entered over the land unauthorisedly, unfairly, or greedily. 48. So far as the pleadings in the application under Section 8 of the Act are concerned, suffice it to say that the same was filed in a prescribed form. There does not exist any column where the requisite pleadings by way of fulfilling the second part of the ingredients of land grabbing could be pleaded. With the said application, a concise statement was annexed. The said concise statement, therefore, became a part of the application. It has categorically been stated therein that the appellant without having any right or title illegally encroached upon the government land. The history of litigation had also been specifically stated therein, which is to the following effect: “4. It is submitted that the respondent Company previously known as M/s Mahalaxmi Motors Pvt. Limited changed its name as Jublee Honda Motors. The land encroached by the respondent was surveyed by the Mandal Revenue Officer through Mandal Surveyor and found that the respondent not only encroached 6946 sq m (amended as per orders passed in IA No. 94 of 2003 dated 13-6-2003) of government land in Sy. No. 82 of Bowenpally, but also encroached an extent of 842 sq m (amended as per orders passed in IA No. 94 of 2003 dated 13- 6-2003) government lands in Sy. No. 157/1 of Thokatta Village as shown in the sketch. The respondent illegally encroached the application scheduled property and constructed sheds and running mechanical workshop for vehicles. The Company constructed workshop and compound wall of an extent of 6946 sq m (amended as per orders passed in IA No. 94 of 2003 dated 13-6- 2003) in Sy. No. 82/p of Bowenpally and an extent of 842 sq m (amended as per orders passed in IA No. 94 of 2003 dated 13-6-2003) in Sy. No. 157/1P of Thokatta Village. The application schedule land is valuable land abutting highway and it is required for public purpose. The cause of action arose when the Mandal Revenue Officer had issued notice on 27-4-1987 to the respondent under the Andhra Pradesh Land Encroachment Act and noticed that the respondent illegally encroached the government land. It is submitted that the application scheduled land is situated abutting to the Hashamathpet Road which is a link road between two national highways running from Hyderabad to Karimnagar and Nizamabad, and it is very valuable property and is required for public purpose. The market value of the land is Rs 5000 per square metres. The respondent is wrongfully using the government land for commercial purpose from 1985 and the respondent is liable to pay a sum of Rs 20 per square metres per month from 1985 till the date of disposal of the LGC as mesne profits/compensation to the Government.” 49. Thus, not only the history of litigation but also area of encroachment was stated. A sketch map showing the same was annexed thereto. The fact that the appellant had made constructions illegally and had been running a workshop was specifically pleaded. One of the reliefs