THE HON’BLE SRI JUSTICE NOOTY RAMAMOHAN RAO W.P.NO.17165 OF 2011 ORDER: The two petitioners in this writ petition mount a challenge to an order dated 07-06-2011 passed by the Tahasildar, Saidabad Mandal, Hyderabad District, in terms of Sectrion 6 of the Andhra Pradesh Land Encroachment Act, 1905, (henceforth referred to as ‘the L.E.Act’) for their eviction, from the land said to be belonging to the Government unauthorisedly occupied by them. The case of the petitioners is this; the 1st petitioner purchased an extent of 108.69 square meters of land covered by premises No.16-1-24/60/1, Saidabad Colony, Hyderabad, under a registered sale deed dated 29-07- 1980 bearing document No.775/81. The 2nd petitioner purchased another extent of 309.35 square meters of land, which also forms part of the same premises, through another registered sale deed dated 29-07-1980, bearing document No.8101/80. Both the petitioners purchased the respective extents of land from Sri G. Balaiah, who, in turn, purchased the same from one Sri Lakshminarayan, under a registered sale deed dated 17- 12-1977, bearing document No.1449/80. The further case of the petitioners is that the premises is covered by a residential structure assessed to municipal property tax and has been provided with electricity, water and drianage connections. The land in question is situate in Revision Survey No.32 and in Town Survey No.5 of Saidabad Village, forming part of Hyderabad Municipal Corporation area. Therefore, the petitioners claim lineage for their title to the sale deeds executed by Sri Lakshminarayan on 17-12-1977. The 3rd respondent Tahasildar issued two separate notices to both the petitioners on 28-04-2011 under Section 7 of the L.E.Act alleging that they were unauthorisedly in occupation of 180 square meters and 309 square meters of Government land. The petitioners contested the veracity of the claim of the Tahasildar through their representations received by the Tahasildar on 06-06- 2011. As is now noticed, on the very next day, the impugned order has been passed by the Tahasildar. When an attempt has been made by the Tahasildar to evict the petitioners, they have earlier approached this Court and this Court has pointed out that even if the petitioners were to be assumed to have encroached upon the Government land, without taking recourse to law, they cannot be evicted. Since, not much turns on the previous history of the litigation, I do not prefer to dwell upon such an issue in further detail. It is now contended by Sri D.V. Seetharama Murthy, learned senior counsel appearing for the learned counsel for the petitioners that the petitioners have been in occupation and enjoyment of the respective parcels of land in their own right, having purchased the same for valuable consideration. There is, therefore, an essential dispute with regard to the title of the property between the petitioners on the one hand and the Sate on the other. Therefore, the summary proceedings initiated under the L.E. Act are ill suited for evicting the petitioners. Where there is a genuine dispute between the State and a citizen with reference to the title of an immovablel property, the normal recourse of securing a declaration from the competent civil court, ought to have been adopted by the 3rd respondent Tahasildar, instead of falling back upon the summary eviction procedure under the L.E. Act. Further, even the procedure contemplated by the L.E. Act has not been faithfully followed by the respondents and hence, the impugned order is liable to be declared as an illegal exercise. Per contra, the learned Government Pleader for Revenue (Telangana Area) would submit that the land in question has been classified in the revenue records, namely, Pahani – Khasra Pahani from 1954-55 onwards as ‘Grave Yard’. Further, the town survey was conducted between the years 1965-70 under the Andhra Pradesh Survey and Boundaries Act, 1923 and the findings of the survey have already been published in the Andhra Pradesh Gazette. As per the town survey land records, the land in Survey No.32/2 of Saidabad Village is classified as “Sarkari” (Government Yard)in Column No.10 and Column No.20, it is noted as “G-Grave Yard”. The land in the Revision Survey No.32/2 of Saidabad Village now corresponds to Town Survey No.5, Block-D, Ward-171, Saidabad Colony, Hyderabad City. It was also contended that even as per the Classer Register for Saidabad Village prepared for the year 1347 Falsi, which corresponds to 1938 A.D., land in Survey No.32/2 of Saidabad Village is recorded as “Sarkari Kabharstan” (Grave Yard). It is, therefore, contended that the petitioners have encroached upon the Government land and they have removed all the traces of a graveyard with a view to put the land to private use of theirs. The learned Government Pleader would further contend that the petitioners have failed to prove their title to the land in question in the face of the revenue record maintained for Saidabad Village and also in view of the findings of the town survey, result of which has been gazetted and which findings have not been challenged within the three year period of their publication, as is required by Section 14 of the Andhra Pradesh Survey and Boundaries Act, 1923. The petitioners having been provided a fair and reasonable opportunity by the Tahasildar, the Competent Authority, no exception can be taken to the order of eviction passed against them. The important question, which engages the attention of this Court, is whether the entries in the Town Survey Land Record (TSLR) would confer a conclusive title or not ? The answer to this question is readily available in the judgment rendered by Justice B. Sudershan Reddy, as the learned Judge then was, in HYDERABAD POTTERIES PRIVATE LIMITED v. COLLECTOR, HYDERABAD[1], in the following manner: “13. However, the Mandal Revenue Officer in his counter-affidavit submits that TS No.4/2, Block ‘B’, Ward No. 66 of Bakaram Village admeasuring an extent of Ac.4.30 guntas equivalent to 19,214 square meters “is a gap area and it was not covered by survey at the time of initial survey.” The petition schedule land is a gap area between Bakaram and Gagan Mahal villages. According to the Mandal Revenue Officer, initial survey in Bakaram village was conducted during1355- Fasli (1945 AD) and Gagan Mahal village was surveyed during1357-Fasli (1947 AD). On verification of these village maps, it is found that certain area is located between these two villages and remained unsurveyed and not accounted for in both the villages. Thereafter, a general survey was conducted in twin cities of Hyderabad and Secunderabad under the provisions of A.P. Survey and Boundaries Act, 1923 (for short ‘the Survey Act’). A notification under Section 6(1) of the Survey Act was issued inviting all the persons to participate in the enquiry for determining the boundaries. The petition schedule lands was surveyed as TS No. 4/2, Block ‘B’, Ward No. 66 of Bakaram village and is recorded as Government land in Column No. 20 of the Town Survey Land Record (TSLR). 14. It is submitted that after completing the survey, a notification was published under Section 13 of the Survey Act in District Gazette No. 43, dated 17-7-1976. No objections were received. Accordingly, the entries recorded in Town Survey have become final and remained without any modification whatsoever. 16. In nutshell, it is the case of the respondent District Collector that in TSLR the land in question is recorded as a Government land. The ownership of the petitioner company is sought to be denied on the basis of simple entry alleged to have been made in TSLR. 19. ………. Sri N. Subba Reddy contends that the entries made in the TSLR have no bearing on the question of title. The survey made under the provisions of the Survey Act was never intended to determine the right, title and interest of any person in any of the lands in twin cities of Hyderabad and Secunderabad. The survey was conducted for the purpose of fixing the boundaries of the land. The entries, if any, made in the TSLR itself would not be enough to deny the title of the owners. 20. ………. Disputing the title for the sake of raising a dispute wound not be enough to conclude that there is a dispute with regard to the title as such. As against the preponderance of evidence and material available on record, a mere entry in the TSLR cannot alter the right, title and interest of the petitioner company in the land in question. 21. 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. 22. The Privy Council in Nirman Singh 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.” 23. The question as to the nature and scope of entries in TSLR had fallen for consideration in W.A.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 upto date and that may introduce some practical difficulties in obtaining TSLR extracts………………….. The TSLR cannot be regarded as a sole guiding factor.” 24. Whether the Municipal Corporation is entitled to reject the application for grant of building permission solely on the ground of an adverse entry made in the TSLR? Justice P. Venkatrama Reddi, (as his Lordship then was) speaking for the Division Bench while adverting to the very question in WA Nos. 115 and160 of 2000 observed: “ The controversy does not rest there. Assuming that the TSLR extract is not available in respect of a particular property or TSLR entries do not go to substantiate the writ petitioners’ case, the question then is whether the building permission should be refused automatically. The answer in our view should be in the negative. We have to read the bye- laws in harmony with the relevant section viz., Section 429. What is stressed by Section 429(aa) is the document proving title to the property. TSLR may be one such document. There are also other documents which are mentioned in the bye-law No. 4(2)(v). The insistence on the production of these documents is only to facilitate the competent authority to satisfy itself that the application has prima facie title and legal authority to erect or re-erect the building. There can be no hard and fast rule as to how to establish the title or lawful authority of the applicant and the basis on which the prima facie satisfaction should be reached by the competent authority. 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 upto date and that may introduce some practical difficulties in obtaining TSLR extracts. Therefore, the mere non-production of TSLR extract, if a valid reason could be given for such non-production, does not clinch the issue. The TSLR cannot be regarded as a sole guiding factor to the competent authority while dealing with the building applications. TSLR entries have to be considered in conjunction with other documents which the applicants would like to place reliance upon. The stand taken by the Municipal Corporation that the proof of ownership/possession in the form of TSLR is an essential pre-requisite cannot be upheld though as we have already observed, such document is a relevant piece of evidence. It will have to be considered in combination with other documents which will have bearing on the title and possession of the applicant for building permission. At best, it can be said that insistence on the extracts from TSLR register may be a rule of prudence. But, it cannot be a rule of rigid and mechanical application.” 26. It is thus clear that en entry in TSLR itself cannot be the conclusive proof of title or lack of it, and the decision either to grant or refuse permission cannot be taken solely on the basis of an entry made in the TSLR. It may be one of the factors that may have to be taken into consideration along with the other material available on record. An entry made in TSLR per se could not create any doubt or cloud on the right, title and interest of a person in respect of any land.” Now, it is put beyond any pale of doubt by this Court that entries contained in Town Survey Land Record cannot be the fountainhead for doubting the right, title and interest of any person in respect of any land. In spite of this clear pronouncement, I am not surprised in the least that the State Government, in its Revenue Establishment, is still raising the very same contentions, based upon the entries in the Town Survey Land Record, which did not find favour with this Court. As to the procedure that has got to be followed under Section 7 of the L.E. Act, the learned senior counsel appearing for the petitioners has rightly placed reliance upon the judgment of this Court rendered in RAVIPUDI ABBAYYA v. STATE OF A.P. REP. BY COLLECTOR, GUNTUR AND OTHERS[2], wherein it was held as under: “18……………………….. Section 6(1) of the Act declares the Liability of a person unauthorizedly occupying Government land to summary eviction and Section 6(2) of the Act prescribes the procedure to be followed in evicting the person in unauthorized occupation. Section 7 provides for giving prior notice to the person in occupation before taking action under Section 6, which is as follows: “7. Before taking proceedings under Section 5 or Section 6 the Collector (or Tahsildar, or Deputy Tahsildar, as the case may be) shall cause to be served on the person reputed to be in unauthorized occupation of land (being the property of Government) a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Section 5 or Section 6. Such notice shall be served in the manner prescribed in Section 25 of the Madras Revenue Recovery Act, 1864, or in such other manner as the (State Government) by rules or orders under Section 8 may direct.” It may be seen from the above provisions that the Government could take one or more of the three steps provided for in the above sections: (1) levy of assessment under Section 3; (2) imposition of penal assessment under Section 5; and (3) eviction under Section 6(2). As has already been pointed out there is no proof in this case that either assessment under Section 3 has been recovered from or that any penal assessment has at any time been levied on the plaintiff. I have therefore to consider whether any action by the Government against the plaintiff has been taken under Section 6 of the Act. It is clear from the reading of Sections 6 and 7 that the following conditions and steps of procedure have to be fulfilled and followed before a person could be legally evicted from the occupation of Government land. First the land must be shown to be Government property in which Government have a subsisting right on the date of the proposed eviction: (2) a notice should issue under Section 7 and should be served on the person concerned to show cause before a date to be fixed why he should not be proceeded against under Section 6 of the Act, and (3) on service of such notice and if sufficient cause is not shown serving a notice requiring him within such time as the Collector may deem reasonable to vacate the land and (4) if such notice is not obeyed directing removal of the person from the land and (5) if such person in occupation resists or obstructs, a summary enquiry by the Collector shall be held and only after the Collector is satisfied that the resistance or obstruction is without any just cause, he could issue a warrant for his arrest and on his appearance commit him to close custody. 19. In this case the learned counsel for the appellant contends that none of the steps laid down by the Act have been taken in this case excepting service of notices periodically under Section 7 of the Act, and that such service is ineffective and does not give rise to a cause of action. (vide Secretary of State for India in Council v. Illikal Assan, ILR 39 Mad 727 : (AIR 1917 Mad 480 (FB). It is pointed out that any act or attempt at summary eviction without following the procedure is totally illegal and cannot be recognized as valid and that in this case according to the evidence of D. W. 7 the so- called delivery of possession on 4-3-1951 has no legal effect whatsoever in view of the fact that the procedure under the Act had not been followed at all and that this so-called delivery of possession was in derogation of the stay order issued by the Collector of the District evening February, 1951 ordering stay of further proceedings and of delivery of possession, this order having been in force at least till 14-3-1951. 20. I am fully in agreement with the conclusions reached by the learned District Munsif which, in my opinion, are fully justified on the material placed on record in this case, that the so-called delivery of possession to the Village Munsif by the Deputy Tahsildar is both illegal and ineffective and cannot be given any recognition whatsoever and that the same cannot be regarded as eviction within the meaning of the Madras Land Encroachment Act. Even assuming that the so-called delivery said to have been effected by D.W.7 is true, it cannot, in my opinion, affect the plaintiff’s right to remain in possession of the suit properties,………….” This legal principle has also been breached in the instant case. Now, turning our attention to the principal question agitated by the petitioners that the summary proceedure is absolutely ill suited in a case of this nature, it is appropriate to notice that the petitioners have set up their right, title and interest to the land through sale deeds executed in their favour by their predecessor-in-interest in 1980, who in turn, acquired the property by way of a registered sale deed executed in December 1977. They also asserted that they are in possession of this land for nearly 30 years. Therefore, the petitioners herein could establish their right, title and interest in the land in question for sufficiently long period. They have genuinely disputed the title of the State with regard to the land in question and in somewhat similar circumstances i n GOVERNMENT OF ANDHRA PRADESH v. THUMMALA KRISHNA RAO AND ANOTHER[3], the Supreme Court has pointed out that where there is a bona fide dispute of title between the Government and the occupant of the land, the same must be adjudicted upon by the ordinary Courts of law and the summary procedure is ill-suited in such circumstances, in the following words: “5. On March 19, 1974, the respondents filed writ petitions in the High Court of Andhra Pradesh challenging the order by which they were evicted from the plots summarily under the provisions of the Act of 1905. the leaned Single Judge dismissed those writ petitions observing: The question whether the lands with which we are concerned in the writ petition were acquired by the Government or not and the question whether the Government had transferred its title to the University or not are questions which cannot properly be decided by me in an application under Article 226 of the Constitution. The appropriate remedy of the petitioners is to file a suit to establish their title. The learned Judge held that: Though the title of the Government is not admitted by the alleged encroacher, there is a finding by the Civil Court that there was encroachment by the alleged encroacher. That is sufficient to entitle the Government to initiate action under the provisions of the Land Encroachment Act. 6. Three appeals were preferred to the Division Bench against the judgment of the learned Single Judge, two of them being by the petitioners in one writ petition and the third by the petitioner in the other writ petition. The Division Bench, while setting aside the judgment of the learned Single Judge, held: The question whether the lands belong to Osmania University or not will have to be decided as and when the Government comes forward with a suit for the purpose. Even if we assume for the purpose of our judgment, as we are not pronouncing any conclusion as to whether the land vested in the Government or University, that the Government is the owner, the dispute going back from 1942 cannot be dealt with in summary proceedings under Section 7 of the Land Encroachment Act. The summary remedy provided by Section 7, according to the Division Bench, cannot be resorted to “unless there is an attempted encroachment or encroachment of a very recent origin” and further, that it cannot be availed of in cases where complicated questions of title arise for decision. 7. We are in respectful agreement with the view taken by the Division Bench, subject however to the observations made herein below. The Andhra Pradesh Land Encroachment Act, 1905, was passed in order “to provide measures for checking unauthorized occupation of lands which are the property of Government”. The Preamble to the Act says that it had been the practice to check unauthorized occupation of lands which are the property of the Government “by the imposition of penal or prohibitory assessment or charge” and since doubts had arisen whether such practice was authorized by law, it had become necessary to make statutory provisions for checking unauthorized occupations. Section 2(1) of the Act provides that all public roads, streets, lanes, paths, bridges, etc. shall be deemed to be the property belonging to Government, unless it falls under clauses (a) to (e) of that section. Section 2(2) provides that all public roads and streets vested in any public authority shall be deemed to be the property of the Government. By Section 3(1), any person who is in unauthorized occupation of any land which is the property of Government, is liable to pay assessment as provided in clauses (i) and (ii) of that section. Section 5 provides that any person liable