*THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G. SHANKAR + WRIT APPEAL Nos.1938 and 2051 of 2001 % 19.10.2011 Between: The District Collector, Mahabubnagar …Appellant and R.Venkataswamy Goud, S/o.Achanna Goud (died) And another …Respondents ! Counsel for the Appellant: The G.P. for Assignment ^Counsel for the Respondents: Sri A.Narasimha Reddy < Gist: > Head Note: ? Citations 1) (2010) 4 SCC 532 : AIR 2010 SC 1664 2) (2004) 10 SCC 779 3) (2007) 11 SCC 714 4) 2009 (2) ALT 89 5) (1982) 2 SCC 134 (Paras 6, 8 and 9) 6) AIR 2004 SC 2836 7) AIR 2009 SC 1645 8) (1990) 1 SCC 193 (Para 26) 9) CCCA No.84 of 1982, dated 16.8.1985 (Division Bench) 10) AIR 1961 SC 1442 11) AIR 1982 SC 1081 12) 1984 (1) APLJ 219 (DB) 13) 1988 (1) ALT 716 14) (1996) 1 SCC 639 : AIR 1996 SC 910 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL Nos.1938 and 2051 of 2001 October 19, 2011 Between: The District Collector, Mahabubnagar ... Appellant And R.Venkataswamy Goud, S/o.Achanna Goud (died) And another … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL Nos.1938 and 2051 of 2001 COMMON JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) The land admeasuring Acs.1.12 guntas in S.No.1005/KK situated at Gadwal is Government land (hereafter, subject land). It was part of the jagir known as Gadwal Samsthan. It was taken over by the Government in 1952 under Jagir Abolition Regulations. Smt.Lakshmidevamma, Maharani of Gadwal, had granted the land to M/s.Mahanandi and Lakshman Goud, the predecessors of the respondents (hereafter, the petitioners) for construction of a rice mill, namely, Mahanandeswara factory. The Tahsildar, Gadwal (the MRO) initiated eviction proceedings under the Andhra Pradesh Land Encroachment Act, 1905 (the Act). The notice dated 23.3.1984 was issued under Section 7 of the Act directing Lakshman Goud, husband of the second petitioner to show cause as to why he should not be evicted from the land and buildings constructed thereon. A month thereafter, on 22.4.1984, the Tahsildar issued order/notice under Section 6 of the Act directing eviction. 2. The petitioners filed appeal under Section 10(2) of the Act before the Sub-Collector. They contended that the original allottees raised structures six decades ago; after their death, successors have been in continuous occupation of the land which was also leased out to third parties; the land is not Government land; there is no record showing the land as Khariz Khata; the factory was assigned Municipal number and that the ownership is recorded in the name of the petitioners; and that the eviction proceedings are unsustainable. The Sub-Collector, Gadwal conducted fresh enquiry and dismissed the appeal. They then filed a revision before the Joint Collector urging that notice under Section 7 of the Act was not served on the petitioners; and due to long occupation the petitioners perfected title to the land by adverse possession. Not impressed with any of the submissions and taking into consideration the absence of any Muntakab or any other document conferring title on the petitioners, the Joint Collector dismissed the revision on 14.8.1987. The petitioners’ revision to the Commissioner of Land Revenue (CLR) was also dismissed on 17.11.1989, aggrieved by which they filed yet another revision petition before the Government. 3. It was contended before the Government that having been in occupation for over six decades and having raised structures on the land, the petitioners perfected their title by adverse possession. The Government, therefore, allowed the revision petition, and directed regularization in favour of the petitioners on payment of market value, “to meet the ends of natural justice”. The petitioners were directed to pay the market value as fixed by the District Collector. 4. After issue of the orders in G.O.Ms.No.1062, dated 23.10.1992, the first petitioner made a representation to the Hon’ble Minister for Panchayat Raj on 17.2.1993 seeking directions to the Collector to fix the market value of the subject land at the rates prevailing in 1336 Fasli when they occupied the land and constructed the factory. It is not clear from the record as to what happened thereafter. But on 01.2.1996, the District Collector issued a notice informing that the market value is fixed at Rs.250/- per Sq.yard and advised the petitioners to pay a sum of Rs.15,73,000/- within fifteen (15) days from the date of receipt of the said notice. At that stage, in July, 1996, the petitioners filed W.P.No.13497 of 1996 seeking declaration that G.O.Ms.No.1062, dated 23.10.1992 is arbitrary, illegal and for a consequential direction to quash the said order as well as the orders passed by the other authorities. Pending the said writ petition, the petitioners filed revision petition before the Government praying to set aside the notice dated 01.2.1996 issued by the District Collector. The Government issued orders in G.O.Ms.No.721, dated 07.10.1999 dismissing the same, aggrieved by which the petitioners filed W.P.No.25566 of 1999 seeking its invalidation. 5. The learned Single Judge heard the writ petitions together and allowed them setting aside the two G.Os. These two writ appeals are filed by the District Collector and his subordinate officials against the common order in the writ petitions. 6. The Assistant Government Pleader for Revenue (Assignment) submits that in furtherance of G.O.Ms. No.1062, the District Collector issued notice dated 01.2.1996 fixing the market value at Rs.250/- per Sq.yard. It is only thereafter the petitioners filed W.P.No.13497 of 1996 with a delay of about five years. The writ petition, therefore, is not maintainable. She would rely on the decision of the Supreme Court in Swaran Lata v State of Haryana[1]. She would then urge that when the predecessors of the petitioners claimed that the land was a grant from Gadwal Samsthan, petitioners cannot be permitted to take the plea of adverse possession to set up title in them. For this purpose, she relied on Karnataka Board of Wakf v Government of India[2], Mahalaxmi Motors Ltd v Mandal Revenue Officer[3] a n d M.Maremma v D.Krishnavenamma[4]. Further, she would submit that the petitioners themselves made a request to the Government for regularization reducing the market value fixed by the District Collector and, therefore, they waived their right. Now the petitioners cannot be permitted to turn around and take a different stand. 7. The Counsel for the petitioners submits that the petitioners have perfected their title to the land by adverse possession and, therefore, the plea of acquiescence and waiver would not arise; when the land was not Government land, the issue of notice under the Act and subsequent proceedings are without jurisdiction; when an authority suffers from inherent lack of jurisdiction, consent or waiver cannot confer jurisdiction on a particular authority. He submits that there is no record to show that the land is Government land and, therefore, the order passed by the Government for regularization on payment of market value is unsustainable. He placed reliance on Government of Andhra pradesh v Tummala Krishna Rao[5], Ashok Layland Ltd v State of T.N.[6], Chandrabhai K. Bhoir v Krishna Arjun Bhoir[7] and Susheel Kumar Mehta v Govind Ram Borah[8]. 8. The point that would arise for consideration is whether appellants made out a case to interfere with the order of the learned Single Judge? 9. The MRO initiated action under the Act in 1984. It is not clear from the record as to what was the stand of the petitioners in their explanation to the notice under Section 7 of the Act. Be that as it is, in their appeal while alleging that the land was given to them by Maharani of Gadwal for setting up a factory they claimed absolute right over the land. They denied the Government title contending that there is no revenue record showing that the land as Khariz Khata. In proof of their ownership they placed reliance on municipal tax receipts. The Sub Collector found that the first page of Wasool baki was not available; the certified copy of the second page alone was produced wherein the land was prescribed as “Gaire Jiraythi Girini” (Government land). Sethwar was also verified and in column-6 thereof the land in S.No.1005 of Gadwal was shown as Khariz Khata. The pahani for 1982-83 was also taken into consideration. The appellate authority came to the conclusion that the petitioners failed to produce documentary evidence in support of the contention that they are owners of the land. The Joint Collector, Mahaboobnagar while confirming the order of the Sub Collector, reconsidered all these aspects. He also noticed that except making an allegation that the land was grant from Maharani of Gadwal, the petitioners did not produce any Muntakab (document evidencing grant). The CLR confirmed order of Joint Collector after perusing the record. 10. In petitioners’ further revision before the Government, they sought for declaration of title. Though they did not have judicial powers under the Constitution of India, the Government came to the conclusion that the argument of the petitioners that title over the land has been perfected by them has force and holds water. We are afraid the Government cannot issue such declaration. The power to adjudicate the right and enforce duties – contractual or otherwise; is entrusted to the judicial organ of the State. In this context, it is necessary to deal with this aspect in some detail. 11. “Whether one accepts or rejects, the absolute theory of separation of powers, the existence of tripartite divisions – administrative, legislative and judicial functions – cannot be ignored.” (Sir Ivor Jenning’s on ‘Law and the Constitution’). This public law theory of separation of powers ensures attainment of the liberty. All the democratic States practice tripartite division in discharge of public functions. Whether or not a public authority is acting ‘administratively’ or ‘legislatively’ or ‘judicially’, in all situations, there is some element of decision making which is the functional common factor of these three overlapping public functions. But every community demands certain decisions to be taken impartially. The ‘executive’ cannot be totally impartial for obvious reasons of partisan political ideology. Therefore, the community requires permanent politically impartial institution to resolve the social, political as well as the economic disputes by recognizing judicial functions of public authority. 12. That function of public authority concerning broad areas of Government activity in which the repositories of power discharge, is called ‘administrative function’. The functions discharged by Ministers in most respects are also executive or administrative which is neither judicial nor legislative. These administrative or ministerial or executive functions may involve taking policy decisions, conducting inspections and enquiries, issuing licences, making rules, making schemes and also granting pardons and remissions etc. When an administrative authority required to act in accordance with principles of fairness such function is characterized as quasi-judicial. It means an administrative authority discharges judicial functions, but with lesser vigour applying lesser standards of reasonableness. In discharging these quasi-judicial functions, an administrative authority would be acting partly judicial and partly administrative. 13. The ‘legislative function’ is the creation and promulgation of general rule of conduct without reference to a particular case. Ordinarily, what the majority decides is the ‘will’ of the people and is to be enforced by the administrative authorities. The Legislators, who make, amend and repeal the law, do not implement the law; enforce the law or apply the law. They – with an exception or two as in the case of contempt of the House or impeachment proceedings – do not make any judicial decisions. 14. The ‘judicial functions’ are distinct from ‘legislative’ and ‘administrative’ functions. If a law is violated, the same decision maker has no say in the same. Likewise, if an administrative decision is not put into effect, in many contexts, administrative authorities cannot penalise violator. But a judicial decision is binding and the same ordinarily cannot be impeached in collateral proceedings. Even the judicial body making it cannot, unless endowed with such power; rescind a judicial decision. The judicial proceedings are privileged and immune from actions for defamation. A negligent or erroneous judicial decision cannot incur any civil liability, provided the officers concerned acted in good faith within the jurisdiction. 15. A true judicial decision pre-supposes an existing dispute between two or more parties. All the ‘Courts’ use some method or procedure for deciding the dispute. Exercise of discretion and exercise of function when requested by an aggrieved party make judicial function distinct from other public function. A large number of public authorities do act judicially in a narrower sense. This does not, however, mean that every one of the functions of public authorities will be characaterized as judicial functions. Indeed, all functions performed by the Courts are not judicial. The Courts and Judges as public authorities discharge, invariably, a large number of functions, which are not judicial in stricto sensu. However, though administrative authorities and judicial authorities exercise discretionary powers, it is only exercise of judicial discretion that involves judicial process. 16. We have briefly adverted to the essential differences in the discharge of functions by the three distinct public authorities to indicate that when there is an issue involved with regard to declaration of rights, it is always the judicially which has power. To say whether a person has acquired title by an adverse possession is a matter which falls squarely within the scope of Section 34 of the Specific Relief Act, 1963. It is only a competent Civil Court in its discretion that can make declaration that a person is entitled to any legal character or any right as to property. No such power ordinarily vests or considered to vest in the executive branch of the State. For these reasons, we must observe that the declaration given by the Government in G.O.Ms.No.1062, to the effect that there is a force in the contention of the petitioner that they have perfected the title by adverse possession, is wholly misplaced and not warranted. It is always different matter if the Government merely regularizes encroachment/occupation of a person by collecting market value. The provisions of the Andhra Pradesh (Telangana Area) Revenue Act, 1317 Fasli and various Government Orders referable to Article 162 of the Constitution of India empower appropriate competent authority to regularize occupations by collecting market value. Therefore the order of the Government, regularizing occupation of the subject land in favour of the petitioners, cannot be faulted. 17. Looking at the matter from different angle as well, we cannot appreciate the contention of the writ petitioners. Even from the beginning when the MRO issued the notice under Section 7 of the Act, the petitioners have consistently urged that the land was grant or gift from Maharani of Gadwal. From this, two issues would emerge, namely, (i) whether it was competent for the jagirdar i.e., Maharani of Gadwal to gift or grant the subject land to the petitioners? and (ii) whether they could claim adverse possession. The answer to both these questions must be against the petitioners. 18. After the District Collector fixed the market value at Rs.250/- per Sq.yard as directed by the Government in G.O.Ms.No.1062, it is the petitioners who approached the Court. It is very doubtful as to whether the Government can now take a stand in this Court that the G.O. itself was beyond the powers of the Government to declare the title of the petitioners. This does not, however, mean that the Government cannot rectify the mistake or withdraw the benefit if the decision is ultra vires or is obtained by fraud or misrepresentation. It is part of the executive power that the decision-maker can always withdraw the decision if it is found to be vitiated by mistake, misrepresentation or fraud, or in the larger public interest subject, however, to certain legally imposed limitations. Therefore, we leave the matter there and take up the next issue for consideration. 19. The Government appears to have accepted the petitioners’ plea of adverse possession and regularized the petitioners’ occupation on payment of the market value, “to meet the ends of natural justice”. It is not clear as to what was the stand of the petitioners in this regard before the Government. But a perusal of the representation dated 17.2.1993 of the first petitioner made to the Minister for Panchayat Raj would show that they accepted the order of the Government without any demur. In the said representation, while stating that the Government regularized the land in their favour subject to payment of the market value, they requested the Minister to direct the District Collector to fix the market value. Further, after receiving the Collector’s notice dated 01.2.1996 advising them to pay Rs.250/- per Sq.yard, the first petitioner again sent a representation to the District Collector. In this petitioners admit that the Government issued G.O.Ms.No.1062, regularizing the land on market value as some sort of settlement; and though they accepted the order to pay the market value they are not in a position to pay Rs.250/- per Sq.yard. They requested the District Collector to fix the market value as prevailed at the time of construction of the factory in 1927–29. 20. The two communications would belie the contention of the petitioners. All along they agreed to pay market value. Thus the principles of acquiescence and waiver would certainly operate. As we have already held above, when the Government itself has no power to declare the title of the petitioners, the petitioners cannot claim any such right based on the order which appears to be ultra vires. Presumably because of this legal position, the Government came forward to regularize the possession on payment of market value. 21. The jagir is a grant of tenure for agricultural land or estate by the sovereign to be enjoyed till the life time of the grantee, namely, jagirdar. It is heritable but if the jagirdar leaves no legal heirs the estate would revert to the sovereign. Even where the legal heirs survive the original jagirdar, there ought to be grant of succession which is a fresh grant. In State of Andhra Pradesh v Mahamed Hasan Khan[9], after referring to the decision of the Supreme Court in Raja Rameshwar Rao v Raja Govind Rao[10], Division Bench of this Court held as under. 1. The Jagir was a tenure common among the Mohammaddan Governments under the General appellations of Inam-al-Thmgha, and Madad-ma-ash in which the public revenue of a given tract of land was made over to a servant of the State. This was either for stated term or for the life time of the holder, lapsing on his death to the State although renewable to his heir on the payment of a Nazrana; and sometimes specified to be hereditary assignment, without which specification it was held to be a life-tenure. This is based on the concept that the Ruler was the absolute owner of all the lands and that he granted only usufructary rights in some of the lands which were called ‘tenures’ and the Jagirdars were one such tenure holders. 2. The concept of Atia Shahi implies an atia or grant by the King for the life time of the grantee or inamdar. The Jagirdar does not get proprietary rights in the Jagir. It is inalienable and non-heritable and his rights are limited to its usufruct for life subject, of course, to his good conduct. The grantor may even resume the land during life time and regrant it to any one he chooses. After the death of the Jagirdar, the lands will necessarily revert to the grantor. 3. The Jagirdar could not grant a permanent lease, unless he was specifically entitled to do so under the Sanad. 4. The Jagirs were inalienable and terminable on the death of the grantee, each Jagirdar though a heir of the deceased holder, was deemed a fresh grantee of the estate, the right to confer such an estate being uncontrolled, absolute and beyond the jurisdiction of the Civil Court. (emphasis supplied) 22. In Government of Andhra Pradesh v T.Krishna Rao[11], it was laid down that where there is genuine dispute of title, the Government cannot resort to summary eviction under the Act. The long possession of the land raises a genuine dispute between the occupants and the Government on the question of title. The question as to whether the title to the property came to be vested in the Government or the occupants perfected their title by adverse possession must be decided in a properly constituted suit. Thus the Government itself cannot declare that an encroacher has perfected the title by adverse possession. 23. In Special Deputy Collector v. Konda Lakshman Bapuji[12], a Division Bench of this Court observed that the occupation of the property for an appreciable length of time can be taken prima facie to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law by the ordinary Courts of Law. The Government cannot decide such questions unilaterally. 24. A learned Single Judge of this Court in Shivalingappa v State of Andhra Pradesh[13], considered the decisions of the Supreme Court in T.Krishna Rao and another decision of this Court in Konda Lakshman Bapuji and observed that these two decisions do not lay down any general law that whenever the persons sought to be evicted from the land claim their possession to be not unauthorised, the Government should be compelled to go to a Civil Court. It was also observed that when there is evidence that Government is in possession of the land, the Court must not conclude that the petitioner raised a bona fide claim about the possession. 25. A person who obtained possession under a document would not be entitled to set up the plea of adverse possession. In Mohan Lal v Mirza Abdul Gaffar[14], the appellant came into possession of the suit lands pursuant to agreement of sale supported by consideration. Subsequently, respondent purchased the land under sale deed. In the meanwhile, the appellant's suit for specific performance of contract was dismissed. In the suit filed by respondent for possession, the appellant raised a plea of adverse possession and also contended that he is entitled to retain possession by operation of Section 53-A of TP Act. The plea of adverse possession as well as part performance was not accepted by Supreme Court observing as under. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription 'nee vi nee clam nee precario'. Since the appellant's claims is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.... The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform