THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE P.DURGA PRASAD WRIT APPEAL No.1330 of 2000 Date of Order: - -2011 Between: Joint Collector-cum-Deputy custodian of the Evacuee Property, Nalgonda and others ..Petitioners And Co-operative Tenant Farming Society, Malkapur Limited and another. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE P.DURGA PRASAD WRIT APPEAL No.1330 of 2000 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) This writ appeal under Clause 15 of the Letters Patent is directed against the orders of the learned Single Judge in allowing the writ petition vide W.P.No.28189 of 1998, dated 18.09.2000, quashing the proceedings of the Joint Collector-cum-Deputy Custodian of the Evacuee Property-respondent No.1 in reference No.B1/9715/96, dated 29.07.1998, declaring the title of the property in respect of Acs.432-32 guntas of the writ petitioner No.1-Society and holding that the respondents have no jurisdiction to initiate proceedings under Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for brevity, “D.P.Act”). Brief History of the case is as follows: Petitioner No.1-Co-operative Tenant Farming Society Malkapur Limited, comprising of small farmers claims to be owners of small extents of land in survey Nos.87, 90 to 110, 112, 272, 273, 279, 115, 123, 137, 141, 267, 114, 1, 28, 41, 48, 50, 55, 61, 82 to 86, 44, 45, 89 and 111 of Malkapur village, Choutuppal Mandal. It is their case that Malkapur is an erstwhile Jagir village and one Mirza Maqsood Ahmed Khan was the Jagirdar, who used to collect the land revenue from the members of the petitioner No.1-Society and their predecessor-in-title on behalf of the State. The total land comprising of Acs.1209-37 guntas did not constitute Jagirdar’s private property except the right of collecting the land revenue on behalf of the State. The Government of Hyderabad in exercise of the powers under Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 fasli (for brevity, “Land Revenue Act”) framed the Rules regarding grant of Pattedary rights in non-khalsa villages and published in the Gazettee No.32, dated Thir.1356 Fasli. As per Rule 2, the persons who are in occupation of any Jagir lands and paid the land revenue to the Jagirdar or his agent shall be deemed to be pattedars of the land irrespective of any agreement to the contrary and also notwithstanding any entries in the revenue records to the contrary. All the members of the petitioner No.1-Society were deemed to have acquired the pattedary rights in respect of the lands occupied by them except the lands which were held by the Jagirdar under his personal cultivation consequent on abolition of Jagirs under the provisions of the Abolition of Jagir 1358 Fasli (1949 A.D.). While so, the revenue officials started claiming the land as an Evacuee Property stating that the Jagirdar Mirza Maqsood Ahmed Khan migrated to Pakistan, even though the members of their predecessors-in-title had acquired title to the property on abolition of the Jagir. The members of the petitioner No.1-Society acting on the statement of the respondents that the property is an evacuee property and allotted to one Dhamanmal Ainshimal, a Displaced Person, purchased an extent of Acs.197-21 guntas of land in Survey Nos.1, 28, 41, 48 to 50, 55, 61, 82 to 86 of Malkapur Village from him and also purchased an extent of Acs.432-32 guntas of land by paying Rs.17,312/- towards the sale consideration as specified and on payment of the amount, the Tahsildar addressed a letter to the Regional Settlement Commissioner on 05.09.1961 stating that the Evacuee Property has been disposed of and sought for issuance of the sale certificate in favour of the Society, since the sale was conducted on the directions of the Regional Settlement Commissioner. Thus, the petitioner No.1-society became owners to the extent of Acs.630-30 guntas and in respect of the balance area, the petitioners are continued to be in exclusive possession and enjoyment of the lands as pattedars by paying land revenue to the Jagirdars. As matter stood thus, in the year 1988, the Revenue Divisional Officer-Bhuvanagiri initiated proceedings under Section 145 Cr.P.C. and passed orders on 06.06.1988 attaching the lands belonging to the petitioner No.1-Society. The petitioners have successfully challenged the orders passed by respondent No.2 in W.P.No.9224 of 1998, which was disposed of leaving it open to the authorities to decide as to the ownership of the land in question. Accordingly, the Joint Collector, Nalgonda– respondent No.1 issued notice in File No.B1/13070/89, dated 12.07.1989, under Section 8(4) of the Administration of Evacuee Property Act, 1950 (for brevity, “E.P.Act”), demanding the Society to surrender the suit land to the Government by 25.07.1989. Since no notice whatsoever was issued before determining the status of the land as Evacuee Property, the petitioner No.1’s-Society filed W.P.No.10390 of 1989, in which this Court stayed the proceedings in WP.MP.No.13779 of 1989. The said writ petition was disposed of on 25.02.1997 observing that the contentions are of disputed in nature requiring a detailed investigation and in view of preparedness on the part of the 1st respondent to re-enquire and hear the parties and then pass appropriate orders, directed the parties to agitate their rights before the 1st respondent. On allowing the writ petition and remanding the matter, notices in form-3 under Section 8(4) of the E.P.Act directing the society to surrender the possession was issued to the petitioner No.1-Society. On receipt of the notice, a detailed representation through Advocates raising various objections namely that under Rule 2 of the rules regarding the grant of pattedar rights in Non-khalsa (Jagir) villages, it has been categorically laid that all persons in possession of Jagir lands and pay revenue to the Jagirdar, shall for all purposes be deemed to be the pattedars of the land so held by them, notwithstanding any oral or written agreement between the Jagirdar and such persons or any entry in the concerned village records to the contrary and their rights and liabilities shall be the same as those of the pattedars of the khalsa lands. Petitioners who have also formed into cooperative society and their predecessors-in-title are recorded as tenants or otherwise, their possession of the said Jagir lands will automatically entitle on them, the pattedary rights as there is no concept of tenant and landlord relationship between Jagirdar and members of the petitioner No.1-Society and as the said lands were not in personal cultivation of Jagirdar they cannot claim the same. On migration of Jagirdar the properties cannot be declared as an evacuee nor the properties vest in the Government. Notwithstanding the declaration of the said Jagirdar as an “Evacuee” the members of petitioner No.1-Society and their predecessors-in-title, who have acquired status of protected tenants in respect of their lands in their possession under the provisions of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural lands Act, 1950 (for short, “Tenancy Act”), will become owners of the land. The members of the petitioner No.1-Society have been in continuous and uninterrupted possession and acquired status and rights of protected tenants, which has been recognized, recorded and published by the authorities under the Tenancy Act. Realising that they are entitled to pattedary rights, the authorities under the E.P.Act decided to regularize the possession by transferring the interests of the Mirja Maqsood Ahmed Khan under the wrong assumption that rights were vested in the Custodian and transferred the same in favour of the petitioner No.1-Society, to an extent of 432-32 guntas of land comprising of survey Nos.87, 90 to 110, 112, 272, 273 and 279 as the said property was not allotted to any other persons. The petitioner No.1 society has paid a sum of Rs.17,312/- as per the demand under five challans, which is as follows: 1. Challan No.112, dated 15.02.1961 – Rs.6,500/-. 2. Challan No.119, dated 17.02.1961 – Rs.2,900/-. 3. Challan No.20, dated 15.04.1961 – Rs.3,000/-. 4. Challan No.166, dated 29.04.1961 – Rs.4,872/-. 5. Challan No.174, dated 02.08.1961 – Rs.40/-. On payment of the said amounts, the petitioner No.1-Society and all its constituent members have become absolute and exclusive owners of the said extent of Acs.432-32 guntas of land in the above survey numbers. The petitioners also were in possession of Acs.197- 21 guntas of land as protected tenants thereof, which was allotted and transferred in favour of Dhamanmal Ainshimal, a displaced person. Accordingly, the Dhamanmal Ainshimal transferred all his rights, title and interest in the said extent of Ac.197.21 guntas of land by registered sale deed, dated 16.02.1965, in favour of the members of the petitioner No.1-Society. Thus the petitioner No.1-Society has become true and absolute owners to an extent of Acs.630-30 guntas of land. Besides the said extent of Acs.630-30 guntas of land, the members of petitioner No.1-Society are in possession of the property in an extent of Acs.778-05 of land, on lease from the Jagirdar by paying revenue thereon and they are deemed to be protected tenants thereof under the provisions of Sections 34, 35, 37-A of the Tenancy Act. In the counter filed on behalf of the respondents in W.P.No.9224 of 1998, it is categorically admitted that the petitioners are the absolute owners in respect of Acs.197.21 guntas of land purchased from Dhamanmal Ainshimal and have not denied the payment of Rs.17,312/- in respect of the other extent of Acs.432.32 guntas of land except citing that they should have filed a petition for transfer of the lands. Therefore, they are entitled to be continued in possession. The 1st respondent by the impugned proceedings after hearing the arguments of the parties and the counsel upheld the title of the petitioners for an extent of Acs.197.21 guntas purchased from Sri Dhammamal Ainshimal in respect of survey Nos.1, 28, 41, 48, 49, 50, 55, 61, 82 to 86, but rejected the claim in respect of the lands in an extent of Acs.432.32 guntas, which is alleged to have been purchased by the petitioner-society covered by survey Nos.87, 90 to 112, 272, 273, 279 and an extent of Acs.778.05 guntas covered by survey Nos.44, 45, 89, 111, 114, 115, 123, 137, 141, 267 holding that the petitioner No.1-society failed to prove that they have purchased it in auction and paid the entire sale consideration; that as the petitioner failed to prove it as a Jagir village and they have not put forth any claim for all these years; and that as the suit lands are not entered in the P.T.Register of the village and that the petitioners society is not protected tenant of the property as claimed by them and accordingly, allowed their claim only in respect of item No.1 of lands measuring Acs.197.21 guntas and rejected their claims in respect of properties of item Nos.2 and 3 mentioned in para 7 of the impugned order. Questioning the same, the impugned writ petition has been filed, contending that issuing notice under Section 8(4) of the E.P.Act pre- supposes the existence of notification under Section 7(3) of the E.P.Act. In the absence of any preliminary notification issued under Section 7(1), conducting of enquiry and a final notification under Section 7(3); and in the absence of any records available with the office of either the Deputy Custodian under the E.P.Act or the Commissioner under the D.P.Act to show that notification contemplated under Sections 7(1) and 7(3) of the E.P.Act has been issued to treat the lands as evacuee property, the property cannot be claimed as an evacuee property and the 1st respondent cannot issue proceedings under Section 8 of the E.P.Act. Once Acs.630-30 guntas were transferred to the compensation pool under the D.P.Act and the transfer was made to a displaced person, no proceedings can be initiated under the E.P.Act. Therefore, issuance of the notice itself is liable to be set aside. When the petitioner purchased an extent of Acs.432-32 guntas in the open auction by paying Rs.17,312/- and produced treasury challans showing purchase of Acs.432-32 guntas, the petitioner cannot be dispossessed from the property in which they have acquired tenancy rights. Respondents filed separate counter. In the first counter filed it was stated that Malkapur village was not a Jagir village and it is a khalsa village and denied the applicability of Section 172 of the Land Revenue Act, as it was not a Jagir village. In para 7 it was stated that the land in question to the extent of Acs.1,407-18 guntas stood patta in the name of one Mirza Maqsood Ali Khan and the said lands were declared as evacuee property concerned on his migration to Pakistan in 1950 and thereafter the lands were allotted to the following displaced persons: Sl.No. Name of the Extent allotted Allotment Displaced person Order No. & date 1. Smt.Radha Bai 143-18 NAL /55 13.5.54 W/o.Chowthiram 2. Tahilmel 260-12 NAL/47 12.5.54 3. Dhamanmal Anishmimal 197.21 NAL/42 12.5.54 4. Unallotted land 806.07 _______ Total 1407-18 It was further stated that the claim of the petitioner No.1-Society that they participated in the open auction conducted by the Tahsildar, Ramannapet over an extent of Acs.432-32 guntas and their acquiring title in the said property, is not correct and denied about the payment of Rs.17,312/- towards the purchase of Acs.432-32 guntas. Had it been a fact, that they are the tenants, their purchasing the lands from the displaced persons, does not arise. The petitioner failed to produce any evidence to the effect that the sale amount was credited in the Treasury through challans and, therefore, the claim was rightly rejected by the 1st respondent. Once the petitioners claim that they have purchased the land from one of the displaced persons under registered sale deed, they cannot turn around and say that the land in question was never declared as evacuee property. Even though no notification was produced, yet, they are estopped from contending that the lands in question are not evacuee property. Since the petitioners produced registered sale deeds in respect of Acs.197-21 guntas, the balance land was directed to be resumed. It is further stated that the records of the evacuee properties were sent to the Accounts Officer during 1960 and they were misplaced and hence, the certified copies of documents could not be furnished as requested by the petitioner. Whether the notification was issued or not declaring the properties as evacuee property, the issue became academic in view of the conduct of petitioners themselves, who have admitted that it is an Evacuee Property, which is evident from the file of Tahsildar, Ramannapet No.B1/5599/59, the Society was a lessee for the year 1958-59 and credited the lease amount on 18.09.1959 and 23.09.1959. The contents of the counter and the stand of the respondents was elaborately discussed by the learned Single Judge in the impugned judgment. In the additional counter affidavit filed in August 2000, it was stated that they could locate some more important documents and that the property of Mirza Maqsood Ahmed Khan was declared as Evacuee Property in Gazette No.188, dated 30.07.1951 and from 1954, it was being shown as evacuee property in the revenue records. The petitioner No.1-Society were never recorded as Protected Tenant holder in the revenue records. The lands were allotted on lease (koul) by the Custodian of the property in pursuance of the order of the Ministry for Rehabilitation, dated 03.08.1953, as the property was vested in the common pool, some portion of the lands inter alia were allotted to three persons viz., Smt.Radha Bai, Thailmel and Dhamanmal Ainshmimal. It is further submitted that the petitioners by suppressing the above lease deed played fraud. The petitioner No.1- Society applied for stay of auction on 14.07.1960 and allotment of Acs.400-00 on payment of fair price on the ground that they had been tilling the lands from 1953. In the said letter, the Mirza Maqsood Ahmed Khan was a contractor in the Military Department and not a Jagirdar. The petitioner No.1-Society though claimed that they paid Rs.17,312/- towards the purchase price, but yet the alleged sale was not confirmed as per rules and no certificate was issued and the original challans were not produced. Another counter affidavit was filed in September, 2000 by the 1st respondent stating that Mirza Maqsood Ahmed Khan was described as Contractor in Military department only on the basis of the contents of the letter filed by the petitioner itself and denied that contradictory stands were taken by them in various counters. The petitioner executed a lease deed in 1953 and also in 1959 and, therefore, they cannot claim adverse possession as it is only a permissive possession. The learned Single Judge after considering the elaborate arguments advanced by the counsels on either side and the pleadings as referred to above, allowed the writ petition as aforementioned. Hence, the present writ appeal. Learned Additional Advocate General contends that once the writ petitioners admitted that they entered into a lease agreement on 03.08.1953 and renewed through a Qouuliyathnama, dated 06.07.1959, and made an application on 14.07.1960 requesting for allotment of the lands by fixing a fair price besides requesting to drop the auction, they are estopped from contending that they acquired title to the property on abolition of the Jagir. Though they admitted that the lands in question are declared to be evacuee property; that they took the lands on lease from the Assistant Custodian (Tahsildar); that they purchased the lands, which pertains to the part of the land which was allotted in favour of Kisan chand, from the allottee of the Evacuee Property in the auction held on 22.07.1960, the file bearing D.Dis.No.4305/60/B1 of Tahsildar, Ramannapet pertaining to this auction does not speak anything about the claim set up by the writ petitioners. The petitioner No.1-Society referred to the letters of the Tahsildar, dated 22.04.1961, under which it was asked to credit the balance of Rs.4,872/- on or before 24.07.1961 and the letter, dated 05.09.1961, addressed by the Tahsildar, Ramannapet to the Regional Settlement Commissioner, Bombay to the effect that the petitioner No.1-Society has credited an amount of Rs.17,312/- through various challans and requesting to arrange the sale certificate as early as possible. Neither the letters of the Thasildar nor the challans, which were produced, are part of the auction file in possession of the Tahsildar, Ramannapet. The Tahsildar is not a competent person to address a letter for issuing sale certificate directly to the Regional Settlement Commissioner, and it is only the District Collector who can address a letter for issuing sale certificate. As per the procedure to be followed while conducting the auction, the bidder is required to make payment only after receipt of the confirmation. But in the instant case even without such confirmation the petitioners are claiming that they had credited the amount on the requisition of the Tahsildar and such a procedure is unknown. Once the auction was conducted for an extent of Acs.769.19 guntas, it is not known as to why the petitioners are alleging to have purchased the lands to an extent of Acs.432-32 guntas only. Further, in the challans produced by the petitioners the head account is not tallying as indicated by the Regional Settlement Commissioner, Bombay in letter No.ASO(CS)/AUC/ Hyd/XXV/2/60/NDP, dated 24.11.1961. In letter No.B/4365, dated 05.09.1960, it was mentioned that the original credit particulars are sent to the Regional Settlement Commissioner, Bombay and hence, there was no possibility for producing the original portion of the challans by the petitioners. The monthly serial Number has to be noted in the left side of bank challan and there is no signature of the Treasury Officer on the challans. The petitioners produced the Xerox copy of the said original but during the year 1961 there was no availability of Xerox machines. Therefore, it is presumed that the original challans were fabricated and no reliance can be placed on it. Therefore, the case set up by the petitioners for purchase of the lands in an extent of Acs.432-32 guntas, cannot be accepted. The writ petitioners, who are the members of the society, claimed that they are the tenants of original jagirdar even prior to the lands in question declared to be evacuee property. the petitioners accepted in their petition, dated 14.07.1960, that Sri Mirza Maqsood Ahmed Khan is a pattedar, but not a Jagirdar and in the absence of any records to show that he is a Jagirdar, they cannot claim any tenancy rights. None of the names of the members of the petitioner No.1-Society are recorded as protected tenants or ordinary tenants in the records prepared under the provisions of Tenancy Act. The finding of the learned Single Judge that initiation of proceedings under Section 19 of the DP Act in respect of the lands allotted to Smt.Radha Bai and Tahelmal to an extent of Acs.143.18 guntas and Acs.216.12 guntas respectively are illegal and without jurisdiction, is erroneous. The lands which were allotted in 1954 to the above two persons has not taken over possession and the possession remains with the Government. Since they have not communicated their consent accepting the allotment, an extent of Acs.72-00 is reduced from the allotment of Tahalmal for not paying the value by order dated 11.12.1968, whereas Smt.Radha Bai submitted a petition for cancellation of the pattas. Therefore, the Government is empowered to initiate action under Section 19 of the D.P.Act to evict the encroachers. Under Section 22 of the DP Act, an appeal is provided to the Settlement Commissioner against the order of the Joint Commissioner, but without availing the alternative remedy of appeal, the writ petition under Article 226 of the Constitution cannot be entertained with regard to the disputed questions of facts. Hence, the Judgment under appeal is liable to be set aside. Sri D.Prakash Reddy, learned Senior Counsel for the respondents sustained the order under appeal contending that the finding of the 1st respondent on point No.2 namely the alleged purchase of the lands to an extent of Acs.432-32 guntas, that the petitioners failed to establish that they have purchased it in the auction, is erroneous, since the notice issued in form No.3, dated 12.07.1989 issued by the Deputy Custodian of Evacuee Property and Joint Collector, Nalgonda shows Acs.432-32 guntas claimed to have been purchased by the society on market value fixed by Tahsildar through his letter No.B1/4305/60, dated 05.09.1961 with a reference to the letter addressed to the Collector and Deputy Custodian contained in ref.No.73098-145/60, dated 18.11.1960. In the counter filed in W.P.No.9224 of 1988 on initiating the proceedings first time, it was admitted that the letter of the Tahsildar, Ramannapet, dated 05.12.1961, to the Regional Settlement Commissioner, refers to Collector Memo No.A5-10084/60, dated 12.01.1961 and 03.07.1961 stating that the Tahsildar was directed by the Collector and Deputy Custodian, Nalgonda to dispose of the lands either to the tenants on market value or by conducting auction and notification of the lands for auction at Rs.40/- per acre as determined by the Collector, Nalgonda. The Memo, dated 16.09.1997, the President of petitioner No.1-Society was informed that the documents at Sl.Nos.4, 5, 6 and 10 of the application were destroyed and it is not possible to issue certified copies sought for by him, wherein he specifically requested the Memo A5-10084/60, dated 12.01.1961, 03.07.1961 and 01.02.1961 and collector’s letter, dated 16.11.1965, to establish that the property was put to auction. Since the files were destroyed the petitioner cannot be put in a disadvantage position and the learned single Judge verified the original challans which were tallying with the letter produced i.e., letters dated 15.01.1961 and 18.01.1960 as referred to by the Tahsildar and Collector in his proceedings the petitioners who purchased the said property cannot acquire the title to the same. Therefore, the finding recorded by the learned Single Judge does not call for any interference. He further contends that when Section 20 itself provides sale either by open auction or by tender or otherwise, Rules 90 and 91 have no application to the facts of the present case. On issue No.4, the learned Single Judge rightly held that the authorities under the E.P.Act will not have jurisdiction merely because possession is not delivered to Radha Bai and another. On issuance of the Sanad, the title of the property will