IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 21663 of 1998 Between: 1 Y.Ganna Reddy, (Died) S/o. Late Malla Reddy, R/o.H.No.1-7-1045, Jamisthanpur, Musheerabad Mandal, Hyderabad. 2 E.Narsimha Reddy, S/o. Late Bala Krishna Reddy, R/o. H.No.1-7-1044, Jamisthanpur, Musheerabad, Hyderabad. 3 E.Ram Reddy, S/o. Late Bala Krishna Reddy, R/o. H.No.1-7-1047, Jamisthanpur, Musheerabad, Hyderabad. 4 Y.Pratap Reddy, S/o. Ganna Reddy, R/o. H.No.1-7-1039, Jamisthanpur, Musheerabad, Hyderabad District. 5 Y.Malla reddy, S/o. Ganna Reddy, R/o. H.No.1-7-1039, Jamisthanpur, Musheerabad, Hyderabad District. 6 Y. Sathamma, W/o. Y.Ganna Reddy, R/o. H.No.1-7-1045, Jamisthanpur, Musheerabad, Hyderabad. 7 Y.Hanumatha Reddy, S/o. Late Ganna Reddy, R/o. H.No. 1-7-1045, Jamisthanpur, Musheerabad, Hyd. 8 Y.Neelakanta Reddy, s/o. late Y.Ganna Reddy, R/o. H.No. 1-7-1045, Jamisthanpur, Musheerabad, Hyd. (P-6 to 8 are brought on record as LR's of the deceased P.1 and Petitioners 4&5 who were already on record are also LR's of the P1 as per court order dt6/4/2000 in WPMP7184/2000) ..... PETITIONERS AND 1 The District Collector, Hyderabad District, Hyderabad. 2 The Revenue Divisional Officer, Hyderabad, Hyderabad District. 3 The Mandal Revenue Officer, Musheerabad Mandal, Hyderabad ......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, order or direction more in the nature of Mandamus directing the respondents not to evict the petitioners from the property i.e. Town Sy.No.6, Block.F, Ward No.154, to an extent of 21,000 Sq. Mtrs., situated at Jamisthanpur vg., Musheerabad Mandal, Hyderabad District by duly declaring the common notice issued vide No. C/6107/97, dt.27-7-98 issued by the 3rd respondent to all the petitioners invoking the provisions of Land Encroachment Act i.e. Act III of 1905 even though it is a private property and even though the petitioners are in possession and enjoyment of the same for the last more than 50 years as illegal, arbitrary, violative of Art.14, and 21 of the Constitution of India and also contrary to the Judgments rendered by the Hon'ble Apex court as well as Hon'ble High Court under A.P. Land Encroachment Act and pass Counsel for the Petitioners: MR.V.RAVI KIRAN RAO Counsel for the Respondents: GP FOR REVENUE The Court made the following : ORDER: This writ petition is filed for a Writ of Mandamus to direct the respondents not to evict the petitioners from the property admeasuring 21000 sq. mts. comprised in Town Sy.No.6, Block.F, Ward No.154, to an extent of 21,000 Sq. Mtrs., situated at Jamisthanpur village, Musheerabad Mandal, Hyderabad District by invalidating notice dated 27.07.1998 issued by the third respondent under the provisions of A.P. Land encroachment Act, 1905 (for short ‘the Act’). The petitioners are permanent residents of Jamisthanpur village, Musheerabad Mandal, Hyderabad District. He claims ownership of the property admeasuring 21000 sq. mts. (hereinafter referred to as ‘the property’). They relied upon documents, such as Seshla Pahani for the years 1955-56, 1956- 57 and 1957-58 in support of their claim of title over the property. According to the petitioners after the death of Malla Reddy, the grandfather of petitioner No.2, the property in dispute was mutated in the names of his sons, namely, Y.Ganna Reddy, Petitioner No.1, Y. Balakrishna Reddy, the father of petitioner No.2, and Ramakrishna Reddy, the younger brother of petitioner No.1. They claim to be in continuous possession of the property for the last 50 years. The petitioners averred that they were initially cultivating the property and that when it has become urban property they obtained valid permission from the authorities concerned and constructed houses apart from establishing commercial establishments such as Fire Wood Shop, cement works, engineering works and a saw-mill. It is the further case of the petitioners that the Government initiated proceedings under the Hyderabad Land Acquisition Act for acquiring an extent of Acs.7.00 of land for the purpose of construction of a labour colony and that the acquisition was later confined to only Acs.1.04 guntas. The father of petitioner No.2 and his uncle Ramakrishna Reddy made claims for payment of compensation while two other persons by name Md. Shamshuddin and Gouse Mohiuddin have also made their rival claims for compensation, which were referred to the Court of I Additional Chief Judge, City Civil Court, Hyderabad, under Sections 14 and 25 of the Hyderabad Land Acquisition Act, which was registered as O.P.No.166 of 1958. The said O.P. was disposed of on 22.11.1962 by the learned I Additional Chief Judge holding that the petitioners are the owners of the property. In the said case, the Tahsildar and Girdawar of Zamisthanpur village were examined as PWs.2 and 3, who deposed in favour of the petitioners. On the basis of the said evidence, the Civil Court held that the possession of Malla Reddy and his sons as pattadars of the land was proved beyond doubt at least from 1938. The said judgment was confirmed in appeal by this Court in C.C.C.A.No.63 of 1964. The petitioners further claim that the property was assessed to property tax by the Municipal Corporation of Hyderabad since more than 40 years in the name of E. Balakrishna Reddy, the father of petitioner No.2. The petitioners also averred that the property was declared under Section 6(1) of the Urban Land (Ceiling and Regulation) Act 1976 (for short ‘1976 Act’) and the Special Officer-cum- Competent Authority granted exemption to 1/3rd extent of the land in favour one of the brothers of petitioner No.1 by recording a specific finding to the effect that the land to an extent of Acs.9.39 guntas stands joint patta in the names of E. Balakrishna Reddy, E. Ganna Reddy and E. Ramakrishna Reddy, who are the natural brothers. The petitioners felt aggrieved by the impugned notices issued by the third respondent purportedly under Section 5 of the Act, whereby the petitioners were asked to show cause why they should not be evicted from the extent of 3500 sq. mts., out of 25280 sq. mts., shown to be comprised in T.S.No.6, Block-F, Ward No.154. A counter affidavit is filed wherein it is inter alia mentioned that the property in dispute was recorded as Government property in the Town Survey Land Record (TSLR), that the petitioners’ claim for ownership was turned down by the Tahsildar and the appeal filed by the petitioners against the said order was confirmed by the Collector, Hyderabad District by observing that the petitioners will have to approach the competent Civil Court for adjudication of their claim of title over the property in dispute, and that despite the said order the petitioners failed to approach the Civil Court. The respondents admitted in the counter affidavit that the Civil Court upheld the title of the petitioners in O.P.No.166 of 1958, but maintained that after abolition of jagirs, it is for the petitioners to establish their title over the land before the competent Court. The respondents have also not denied filing of declarations by the petitioners under the provisions of the 1976 Act, but however, averred that the order passed by the Special Officer is subject to the provisions of sub-section (2) of Section 6 and Sections 15, 18, 22 and 38 of the 1976 Act. The petitioners filed a detailed reply affidavit wherein they have reiterated their plea of title over the property in dispute. At the hearing, Sri V. Ravikiran Rao, learned counsel for the petitioners submitted that while there is overwhelming documentary evidence to show that the ancestors of the petitioners during their lifetime and the petitioners, thereafter, are the true owners of the property and have been in possession of the same at least for the last 50 years. The respondents cannot, therefore, initiate summary proceedings under the provisions of the Act for eviction of the petitioners. He submitted that even assuming that the respondents dispute the title of the petitioners over the property in dispute, they can only initiate proceedings before the competent Court to declare their title. He relied upon the judgment of the Supreme Court in Government of A.P. v. T. Krishna Rao [1] in support of his contention that when there is bona fide dispute regarding the title of the property, the State cannot initiate summary proceedings for eviction of the persons in possession by invoking the provisions of the Act. The learned Government Pleader for Revenue submitted that while the respondents are not seeking to evict the petitioners from the property occupied by the structures, the petitioners are sought to be evicted only from the vacant land. He submitted that in TSLR the property is registered as Government property and therefore it is for the petitioners to approach the competent Civil Court and get their title declared. I have carefully considered the submissions of the learned counsel for respective parties and perused the record. There is no dispute regarding the judgment of the Civil Court in O.P.No.166 of 1958, which was confirmed by this Court in C.C.C.A.Nos.63 of 1964 and 73 of 1964 wherein while deciding the rival claims to receive compensation for acquisition of part of the land covered by the same survey number, the Civil Court and this Court upheld the title of the petitioners. It is also not disputed that the revenue officials including the Tahsildar examined as PWs.2 and 3 in the said cases supported the petitioners’ plea of title over the property. The fact that the petitioners and their ancestors included the land in dispute in their declarations filed under Section 6(1) of the 1976 Act and appropriate orders were passed therein accepting the declarations and granting part exemption, is also not disputed. Though in paragraph No.10 of the counter affidavit, it is pleaded that the petitioners’ claim of title over the land was rejected by the Tahsildar and the same is confirmed by the District Collector, Hyderabad, no material is placed before this Court in support of such assertion. It is not explained in the counter as to the context in which such a claim of title had to be made by the petitioners before the revenue authorities. As regards the plea of the respondents that the property is entered in TSLR as the Government property, a Division Bench of this Court in Hyderabad Potteries Private Limited v. Collector, Hyderabad [2] after a detailed consideration of the provisions of Andhra Pradesh Survey and Boundaries Act, 1923, held that an entry in TSLR by itself cannot be the conclusive proof of title or lack of it. The learned Judge observed at paragraphs 21 to 23 as hereunder. “A bare reading of scheme of the A.P. Survey and Boundaries Act, 1923 would make it clear that the survey made under the said Act is mainly intended for the purposes of identification of the lands and fixation of boundaries. There is no provision under the Act intending to make any detail enquiries with regard to the right, title and interest of the persons in the lands. It is neither the object nor the scheme of the said Act. There is no presumption that every entry made in the TSLR shall be presumed to be true until contrary is proved as in the case of entries made in the record of rights under the provisions of A.P. Record of Rights in Land Act, 1971. It is not a record of right. There is no such provision in the Andhra Pradesh Survey and Boundaries Act, 1923. The Privy Council in Nirman Singh v. Lal Rudra Partab, AIR 1926 PC 100, observed: “It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.” The question as to the nature and scope of entries in TSLR had fallen for consideration in WA Nos.115 and 160 of 2000 before a Division Bench of this Court. The Division Bench observed that “the entries in TSLR are no doubt relevant. But they are not conclusive. It is common knowledge that there may be many instances where the owners of land in urban areas will not be in a position to correlate the house numbers or ward numbers to the survey numbers or the entries may not be up to date and that may introduce some practical difficulties in obtaining TSLR extracts………….. The TSLR cannot be regarded as a sole guiding factor.” This view was endorsed by a Division Bench of this Court in Sogra Begum and another v. State of A.P.[3]. From the discussion undertaken hereinabove, it is quite evident that all the petitioners have been in longstanding possession of the property in dispute right from the time of their ancestors, which fact has not been disputed by the respondents. The petitioners also assert their title over the property on the basis of the judgments of the Civil Court and this Court and also the orders passed under the provisions of the 1976 Act. While this Court need not express its conclusive opinion on the title of the petitioners, it is however necessary to observe that the petitioners have a bona fide claim for title over the property in dispute and have been in possession of the same for several decades. In this admitted fact situation, the short question that arises for consideration is whether the respondents are justified in initiating summary proceedings under the provisions of the Act to evict them. This issue is no longer res integra in view of the authoritative pronouncement of the Apex Court in T. Krishna R a o (1 supra) wherein the Apex Court while analyzing the provisions of the Act, held as under “It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is “the property of Government”. In regard to property described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorized occupation of property which is declared by Section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1), which confers the power of summary eviction on the Government, limits that power to cases in which a person is in unauthorized occupation of a land “for which he is liable to pay assessment under Section 3.” Section 3, in turn, refers to unauthorized occupation of any land “which is the property of Government.” If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process, which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents. The view of the Division Bench that the summary remedy provided for by Section 6 cannot be resorted to unless the alleged encroachment is of “a very recent origin”, cannot be stretched too far. That was also the view taken by the learned single Judge himself in another case, which is reported in Mehrunnissa Begum v. State of A.P., (1970) 1 Andh LT 88 which was affirmed by a Division Bench (1971) 1 Andh LT 292: (AIR 1971 Andh Pra 382). It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts, which raise a bona fide dispute of title between the Government and the occupant, must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly 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. The conspectus of facts in the instant case justifies the view that the question is to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessor-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.” (Emphasis added) In my considered opinion, the ratio laid down in the above reproduced judgment of the Supreme Court applies in all fours to the instant case. As there is a bona fide dispute of title and in view of the longstanding possession of the petitioners, initiation of summary proceedings by the respondents is wholly inappropriate and not permissible in law. The only remedy for the respondents lies in getting the title of the Government declared before the competent Civil Court before seeking eviction of the petitioners. For the above mentioned reasons, the impugned notices are quashed subject to the observations made hereinabove. Accordingly, the Writ Petition is allowed. No costs. ________________________ (C.V. Nagarjuna Reddy, J.) 18th February, 2009 Js. [1] AIR 1982 SC 1081 [2] 2001 (3) ALD 600 [3] 2002 (1) AWR 131