IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION Nos.18977 and 23716 of 2007 WRIT PETITION No.18977 of 2007 Between: 1 Ambika Prashad, S/o.Gulabraji, R/o.1-7-1062 Azamabad, Musheerabad,Hyderabad 2 Ramsudhir, S/o.Ambika Prashad, R/o.1-7-1062 Azamabad, Musheerabad,Hyderabad 3 Ramanuj, S/o.Ambika Prashad, R/o.1-7-1062 Azamabad, Musheerabad,Hyderabad 4 Smt.Vimla Devi, S/o.Ambika Prashad, R/o.1-7-1062 Azamabad, Musheerabad,Hyderabad 5 Smt.Deepa Wife of Ramsudhir, R/o.1-7-1062 Azamabad, Musheerabad,Hyderabad 6 Smt.Meena W/o.Ramanuj, R/o.1-7-1062 Azamabad, Musheerabad,Hyderabad 7 Master Krishna, S/o. Ram Sudhir, R/o.1-7-1062 Azamabad, Rep.by his Father Mr.Ram Sudhir Musheerabad, Hyderabad ..... PETITIONERS AND 1 The Govt. of A.P, Rep. by its The Principal Secretary, Revenue Dept, Secretariat, Hyderabad 2 The Special Chief Secretary & Chief Commissioner of Land Administration Abids, Hyderabad 3 The Collector, Ranga Reddy Dist Khairtabad, Hyderabad 4 The Revenue Divisional Officer, Chevella Division, Athapur, Ranga Reddy District 5 The Mandal Revenue Officer, Malkajgiri Mandal, Malkajgiri,R.R Dist 6 The Commissioner of Police, Cyberabad,Ranga Reddy Dist .....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 issue a writ of Mandamus or any other appropriate writ, order or direction declaring the action of the Respondent No:5,in putting up the Board depicting "the Land belongs to Government" as illegal, arbitrary, unjust and contrary to the directions of this Hon'ble Court in W.P.No.19025 of 2004 dated:14-10-2004 and direct the Removal of the same and consequentially direct the respondents to pass orders on the representation made by the petitioners dated 26-12-2003 seeking for regularization of petitioners' possession to an extent of land admeasuring 700 sq yards each of the petitioners in Survey No.278 of Malkajgiri Mandal, Ranga Reddy Dist as directed by this Hon'ble Court. WRIT PETITION No.23716 of 2007 Between: 1 Ambika Prashad S/o. Gulabraiji R/o. 1-7-1062, Azamabad, Musheerabad, Hyderabad. 2 Ramsudhir S/o. Ambika Prashad R/o. 1-7-1062, Azamabad, Musheerabad, Hyderabad. 3 Ramanuj S/o. Ambika Prashad R/o. 1-7-1062, Azamabad, Musheerabad, Hyderabad. 4 Smt.Vimala Devi W/o.Ambika Prashad R/o. 1-7-1062, Azamabad, Musheerabad, Hyderabad. 5 Smt. Deepa W/o.Ramsudhir R/o. 1-7-1062, Azamabad, Musheerabad, Hyderabad. 6 Smt. Meena W/o. Ramanuj R/o. 1-7-1062, Azamabad, Musheerabad, Hyderabad. 7 Master Krishna S/o.Ram Sudhir S/o.Ambika Prasad, aged 38 years R/o. 1-7-1062, Azamabad, Musheerabad, Hyderabad. ..... PETITIONERS AND 1 The Government of Andhra Pradesh, Rep. by the Principal Secretary, Revenue Department, Secretariat, Hyderabad. 2 The Special Chief Secretary & Chief Commissioner of Land Administration Abids, Hyderabad. 3 The Collector, Ranga Reddy District, Khairtabad, Hyderabad. 4 The Joint Collector-I Ranga Reddy District, Khairtabad. 5 Revenue Divisional Officer, Chevella Division, Athapur, Ranga Reddy District. 6 The Mandal Revenue Officer, Malkajgiri Mandal, Malkajgiri , R.R. District. .....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 issue a writ of Mandamus or any other appropriate writ order or direction declaring the Memo dt.22-9-2007 passed by the 4th Respondent namely the Joint Collector-I Ranga Reddy District vide Memo No. E1/6510/2007 as illegal, arbitrary unjust and without proper enquiry and violation of principles of natural justice and consequentially direct the respondents to regularize the possession of the petitioners to an extent of Land admeasuring 700 sq. yards each of the petitioners in Sy.No. 278 of Malkajgiri Mandal , Ranga Reddy District in terms of G.O.Ms.no. 515 (Rev) dt. 19-4-2003 and as revised vide G.O.Ms.No. 1601 (Revenue) dt. 29.8.2005 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and in the interest of justice. Counsel for the Petitioners: MR.M.S.N.PRASAD Counsel for the Respondents: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION Nos.18977 and 23716 of 2007 COMMON ORDER: As petitioners and respondents are same and the subject matter is also same, common order would be sufficient. First petitioner is the father, petitioners 2 and 3 are his children and fourth petitioner is his wife. Fifth petitioner and seventh petitioner are wife and son of second petitioner whereas sixth petitioner is wife of third petitioner. All of them filed writ petitions challenging proceedings taken out for evicting them from the land admeasuring Ac.1.02 guntas in survey No.278 of Malkajgiri (hereafter, petition schedule land) and also challenging orders of Government rejecting their request for regularization of their occupation. The brief fact of the matter is as follows. First petitioner allegedly purchased petition schedule land under an agreement of sale, constructed a shed, after obtaining permission from Gram Panchayat. Some time later petition schedule land was divided under family settlement each of them getting 700 Sq.yards as their share. Petitioners are allegedly in possession of the land. It appears that there was a dispute between the vendor and petitioners, which ultimately ended in a compromise decree dated 31.1.1986 passed by the Court of Principal District Munsif, Ranga Reddy District, in O.S.No.127 of 1985. In 1998, Tahsildar (then Mandal Revenue Officer), Malkajgiri, initiated action under Andhra Pradesh Land Encroachment Act, 1905 (Encroachment Act, for brevity). An order under Section 6 of Encroachment Act was passed on 13.3.1999 directing removal of encroachment of Government land. First petitioner then preferred an appeal before Revenue Divisional Officer (RDO), Chevella. Taking appeal on file, RDO refused to stay eviction. First petitioner therefore filed W.P.No.7927 of 1999. This Court disposed of writ petition on 13.4.1999 directing RDO to dispose of appeal within a period of four months and also ordered status quo regarding possession. It appears that under a cover of panchanama dated 14.4.1999, Mandal Revenue Inspector, Malkajgiri, evicted occupants and took possession of land. Thus orders of Tahsildar dated 31.3.1999 were enforced. Four months thereafter, RDO passed orders in Case No.D/1071/1999 on 04.8.1999 dismissing the appeal filed by first petitioner. He then preferred revision before Joint Collector, Ranga Reddy District. As no interlocutory orders were passed, first petitioner filed W.P.No.22384 of 1999. This Court, while directing status quo existing as on the date of filing of revision petition, disposed of writ petition on 28.10.1999. In the mean while, Government issued G.O.Ms.No.515, notifying policy guidelines for regularization of Government land in occupation on payment of market value. Be that as it is, Joint Collector, Ranga Reddy District, passed orders in Case No.E1/4889/1999 on 28.6.2003. Revision petition was dismissed. Petitioners then made representation to Government on 28.12.2003 seeking regularization of their occupation in accordance with policy guidelines contained in G.O.Ms.No.515. The Government vide their memo dated 03.4.2004 forwarded representation to District Collector for detailed report. At that stage, alleging that Tahsildar, Malkajgiri, is trying to allot the land to some other persons, petitioners filed W.P.No.19025 of 2004, seeking a writ of Mandamus to Government and other revenue officials not to allot the land in survey No.278 to third parties. By an order dated 14.10.2004 while disposing of the writ petition, this Court directed District Collector to pass appropriate orders on the representation dated 26.12.2003. Petitioners allege that even though application seeking regularization was pending before the Government, on 21.7.2007, Tahsildar allegedly installed a board declaring that that the land belongs to Government. Petitioners’ request to remove the board proved futile. On 30.8.2007, Police demolished seven structures ignoring protest made by petitioners. Therefore they gave yet another representation on 30.8.2007 to Tahsildar, in vain. They therefore filed W.P.No.18977 of 2007 seeking a writ of Mandamus declaring action of respondents in erecting board as illegal and arbitrary and also for direction to pass orders on their representation for regularization. This Court admitted writ petition on 08.9.2007. Two weeks thereafter Joint Collector passed order dated 22.9.2007 rejecting application for regularization on the ground that applicants do not satisfy conditions specified in G.O.Ms.No.515 as revised in G.O.Ms.No.1601, dated 22.9.2005. This is assailed in W.P.No.23716 of 2007. Tahsildar, Malkajgiri, filed counter affidavit in W.P.No.18977 of 2007. Another counter affidavit is also filed in W.P.No.23716 of 2007. Respondents’ case is as follows. The land admeasuring Acs.236.24 guntas in survey No.278 is classified as dry kancha poramboke circari land (Government land). Therefore as directed by District Collector, Tahsildar erected a board claiming it to be Government land. Petitioners’ representation was already disposed of by Joint Collector, Ranga Reddy District, rejecting regularization. It is also stated that pursuant to order passed on 19.3.1999 under Section 6 of Land Encroachment Act, possession of land was taken on 14.4.1999 and since then land is in possession of Government. Petitioners are not in possession and therefore G.O.Ms.Nos.508 and 515 are not applicable to them. Learned Counsel for petitioners made submissions to the following effect. After purchasing land and getting their right and title perfected in a compromise decree, petitioners obtained permission from Gram Panchayat and erected sheds. There was also family partition in which all the petitioners got 700 Sq.yards each. They have been in possession of the land and the allegation that Tahsildar, Malkajgiri, took possession of land pursuant to orders under Land Encroachment Act, is not correct. In W.P.No.19025 of 2004, this Court directed not to dispossess petitioners from the land, and therefore, order of Joint Collector rejecting petitioners’ request for regularization is illegal. Nextly he submits that while the matters are pending before this Court, petitioners made another representation on 12.5.2005 seeking regularization as per G.O.Ms.No.166, dated 16.2.2008, and therefore, the same may be considered afresh. Per contra, learned Assistant Government Pleader submits that petitioners have been evicted pursuant to orders passed by Tahsildar under Land Encroachment Act, which have become final. Therefore, policy guidelines contained in G.O.Ms.Nos.508, 515 or 1601 have no application. He would urge that as the petitioners are not in possession, latest guidelines issued by Government in G.O.Ms.No.166 cannot be applied to petitioners. The only point that arises for consideration is whether petitioners are entitled for regularization in accordance with G.O.Ms.No.515, which now stands revised by G.O.Ms.No.166, dated 16.2.2008. The Joint Collector, Ranga Reddy District, vide impugned memo dated 22.9.2007 rejected request for regularization. A perusal of said order would show that as per the orders of High Court in W.P.No.19025 of 2004, matter was referred to Tahsildar, Malkajgiri, who submitted report on 06.9.2007. Tahsildar reported that Sri Ambika Prasad and others constructed two rooms in the year 2000. Therefore, Joint Collector passed orders observing that as regularization is permissible under G.O.Ms.No.515, only when dwelling structures are existing prior to 1990, petitioners’ request cannot be considered. This order is strictly in accordance with various G.Os for regularization and it cannot be faulted. In the G.O.Ms.No.515, Government came forward with the scheme of regularising illegal occupations/encroachments mainly by poor persons for housing as well as those persons, who purchased the properties believing them to be private properties. Initially, G.O.Ms.No.508, dated 20.10.1995 was issued modifying earlier such scheme. As per G.O.Ms.No.508 applications are to be made by all the persons, who encroached the Government land prior to 31.03.1990 and such applications are to be filed before 31.03.1998. As there were number of persons, who could not apply, the Government issued G.O.Ms.NO.515 extending time for making applications upto 31.12.1998. The petitioners did not make application. They sent application for regularisation only on 28.12.2003 beyond time specified in G.O.Ms.No.515. Therefore, their application does not fall under the categories to be dealt with as per G.O.Ms.No.515. In G.O.Ms.No.515, the Government issued following guidelines regarding modalities for regularisation and rates applicable. It has come to the notice of the Government, that still there are number of encroachments on Government lands. Taking into consideration of practical difficulties encountered in eviction of illegal encroachments in strict enforcement of Law and to minimize the long pending litigation, Government have reviewed the matter and decided to regularize the eligible encroachments on the Government lands in urban areas by way of residential structures in respect of the encroachments mentioned in the G.O. first read above, based on the following guidelines, namely:- (i) There shall be a residential structures existing on the Government lands. (ii) The regularization will be strictly limited to cases, where the encroachment is un-objectionable. Where the lands under encroachment is found more suitable for any public purpose, the Government reserves the right to earmark the land for such public purpose as deemed fit and the encroacher shall be evicted. (iii) The encroachments by the person below poverty line (i.e., where the income of family consisting of a person, his/her spouse and minor children is below Rs.12,000/- per annum) may be regularized on free of cost upto the following limits. Municipal Corporations 67 Sq.Mtrs. (80 Sq.Yards) Municipalities 84 Sq.Mtrs. (100 Sq.Yards) Panchayats 100 Sq.Mtrs (120 Sq.Yards) The excess area over and above free of market value limits shall be regularized on payment of market value at the rates specified in Schedule-I of G.O.Ms.No.455, Revenue (U.C.I) Department, 29.07.2002. The excess land in the possession of occupier on which there is already a structure, though the possession is not supported by any registered document of purchase taken into consideration. Structure for the purpose of regularization include any construction which is constructed with walls and covered with a roof of RCC/Tiles/AC Sheets/Zinc sheets or tubular structure but does not include a hut or shed without walls. As per the said Government Order, the following rates are applicable. The following rates are made applicable for regularization of encroachments where structures are being used for residential purposes: Extent Market Value 1. Upto 500 Sq.yards - The basic value of 1995 2. 501 to 1000 Sq.yards - 50% of current basic value 3. 1001 and above Sq.yards - Current basic value The following rates are made applicable for regularization of encroachments where structures are being used for non-residential i.e., commercial purposes: Extent Market Value 1. Upto 500 Sq.yards - The basic value of 2003 2. 501 to 1000 Sq.yards - 75% of current basic value 3. 1001 and above Sq.yards - Current basic value There is no denial by petitioners that Tahsildar initiated action under Land Encroachment Act and passed orders under Section 6 of Land Encroachment Act. These orders were confirmed by appellate authority as well. Petitioners have also annexed these orders along with reply affidavit. However petitioners contend that even after dismissal of revision by Joint collector on 28.6.2003, they are in possession. This is belied by a perusal of copy of panchanama conducted on 14.4.1999 itself. This would show that on that day Mandal Revenue Inspector along with two panchas went to land admeasuring Acs.1.02 guntas in survey No.278. He noticed thirteen (13) coconut trees, well and four (4) ACC rooms. ACC rooms were got vacated and possession was taken. If petitioners dispute this panchanama, it is for them to produce necessary proof. Be it noted, unless a person is shown to be in possession and constructed a dwelling house, no regularization under various G.Os is permissible. If a person does not have any document or registered document to show his possession or existence of dwelling house, G.O.Ms.No.515 contemplates the following. … … Where there is no registered document, the date of possession shall be the earliest of the years with reference to the dates of any or all of the following primary documents pertaining to the structure existing on the encroached land. 1. Electricity connection 2. Construction permission 3. Payment of property tax 4. House hold supply card 5. Telephone connection Petitioners have not placed before this Court any document as enumerated in G.O.Ms.No.515, and therefore, their contention that they are still in possession cannot be accepted. Further, petitioners alleged that they have purchased property under agreement of sale and also got their title recognised by virtue of a compromise decree. In the opinion of this Court, remedy is not to seek regularization under relevant G.Os but to seek relief elsewhere. As noticed supra, Government came forward with regularization scheme to help people below the poverty line who occupied Government land and constructed dwelling houses. Policy guidelines were never intended to regularize occupation of Government land by persons like petitioners, who allegedly purchased land one acre of classified in revenue records as “dry kancha poramboke circari” land. Learned Counsel also relied on the order of this Court dated 14.10.2004 in W.P.No.19025 of 2004 in support of contention that his clients are in possession. The submission cannot be accepted. Firstly this Court passed orders at the admission stage based on the affidavit filed by petitioners. Secondly in the affidavit accompanying W.P.No.18977 of 2007, petitioner averred as follows. While so, on 21.7.2005 the 5th respondent installed a board on our land depicting “the land belongs to Govt” immediately we approached the respondent No.5 with a request to remove the board immediately since the action of 5th respondent is contrary to orders of this Hon’ble Court and violative of fundamental rights. I also approached the 6th respondent on 23.7.2007 to issue instruction to the S.H.O., P.S., Neredmet to give protection to prevent the unsocial elements from interfering with our peaceful possession and enjoyment of the land and to maintain the law and order. In view of our representation, the respondent No.5 along with the police came to the land on 30.8.2007 and removed some unsocial elements who are trying to encroach our land and they have also dismantled our permanent structures numbering 7 of us despite of our serious protest. But they did not remove the board. The action of the respondent No.5 is high handed and illegal. Similar averments contained in paragraph 12 of the affidavit accompanying W.P.No.23716 of 2007. The above averment is an admission that petitioners are not in possession of property and even before 21.7.2007, some anti-social elements were in encroachment and they were removed by Police. Thus the material placed before this Court would show that petitioners were evicted pursuant to orders of Tahsildar under Land Encroachment Act. Therefore they would not be entitled for regularization. In any event, as petitioners failed to produce any proof before this Court that they are in possession of land and raised construction before stipulated date for dwelling purpose. The order of Joint Collector, Ranga Reddy District, impugned in W.P. No.23716 of 2007 is therefore unexceptionable and is in accordance with police guidelines contained in G.Os. The writ petitions fail and are accordingly dismissed with costs. _______________ (V.V.S.RAO,J) February , 2009 YS