THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.26168 OF 1995 AND C.C.NO.1895 OF 1997 DATED: 04-10-2005 w.P.NO.26168 OF 1995 BETWEEN M.Shujaat Ali khan .. PETITIONER AND State of A.P. rep.by Collector and others .. RESPONDENTS C.C.No. 1895 of 1997 Between: M.Shujaath Ali Khan .. Petitioner And Bhanwarlal, District Collector and others .. Respondents THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.26168 OF 1995 AND C.C.NO.1895 OF 1997 O R D E R Heard both the counsel. 2. Since the contempt case arises out of the interim order passed in the main writ petition, both writ petition as well as contempt case are being disposed of by this order. 3 . The writ petition is filed for a writ of Mandamus declaring the impugned proceedings of the 3rd respondent – Deputy Director, Survey & Land Records, Hyderabad, bearing Lr.No.B3/679/94 dated 15.11.1994, communicated to the petitioner on 18.11.1995 as illegal and arbitrary and the consequential action of the respondents 1 and 2 i.e., the Collector and Mandal Revenue Officer based on the impugned proceedings of the 3rd respondent in treating and constructing by itself or through its nominees, assignees, allottees etc. on the petitioner’s aforesaid land bearing Sy.No.197 / Ts 3/2 ward no.89, block no.K, Banjara Hills, Shaikpet Village, as illegal and arbitrary and direct the respondents to restore the said land to the petitioner with costs. 4 . The case of the petitioner as stated in the affidavit filed in support of the writ petition is that the land in Sy.No.197 (T.S.No.3/2) of Shaikpet village, Road No.5, Banjara hills originally belongs to one Syed Mohd. Mohiuddin alias Syed Mohd. Mehdi. In or about 1942 he gifted Acs.2.15 gts. of land in favour of Nadeem Begum and an extent of Acs.1-03 gts. to Agha Hyder Hassan Mirza. Thereafter the said Agha Hyder Hassan Mirza gifted the property by way of Hiba on 25.11.1973 to the petitioner and thereby the petitioner along with his wife Smt. Noorunnissas Begum and His daughter Sardar Fatima have become owners and they are in possession of the land to an extent of Acs.1-03 gts, equivalent to 5,203 sy yards. The said original owner also gifted by way of Hiba the remaining extent of 1,150 sq. yards forming part of the same survey number to his brother’s daughter Smt.Kanees Banoo on 30.11.1973 and put them in possession. The said original owner also confirmed the said gift in writing by executing a memorandum of past gift. As the petitioner is looking after the entire property on behalf of his wife and daughters, filed this writ petition on their behalf. It is stated that the petitioner has been in possession and enjoyment of the land and paying non-agricultural tax assessed for the years 1963 to 1994. In the revenue records, though the mutation up to date has not be done, the entire property continues to be shown as standing in possession and enjoyment of Syed Mohd. Mehdi till the year 1984. Coming to know that the revenue survey operations were taken up and the land is being shown as Government land, without noticing the ownership and possession, petitioner filed a representation on 30.12.1993 before the Joint Collector, Hyderabad enclosing all the documents in support of his claim, for rectification of town survey records. Subsequently, the Collector, Hyderabad ordered action on the petitioner’s representation on 2.9.1994 and on the basis of the same, the Deputy Director Survey and Land Records, Hyderabad under his proceedings dated 30.9.94, called upon the petitioner to produce the original documents in support of the claim and the petitioner produced the same. Since, there was no further communication, the petitioner filed representation dated 29.7.1994 and subsequently he also filed another representation before the 2nd respondent on 2.11.1995. While so, on 1.11.1995 the officials of the respondents 1 and 2 visited the petitioner’s site and were demarcating and making out plots. On being questioned, the respondents informed that the petitioner’s land is being allotted to the Government Driver’s Association by making out plots for each of the driver, for constructing their houses. Aggrieved by the same, the petitioner filed W.P.No.25022/1995 and this court by order dated 8.11.1995 disposed of the writ petition directing the respondents to dispose of the representation of the petitioner dated 30.12.1993 within a period of four weeks and in the meanwhile directed that no third party interest shall be created on the land in question. In spite of communicating the said order, as the Divers to whom the land was allotted, started digging foundations, the petitioner served a contempt notice and pursuant thereto, the 3rd respondent sent a telegram to the petitioner dated 15.11.1995, informing that the order of this court dated 8.11.1995 was already implemented in view of passing of the orders on the petitioner’s representation long back on 15.11.1994. The petitioner requested for furnishing of the copy and on 18.11.1995, the order dated 15.11.1994 was furnished, which reveals that the request of the petitioner for correction of entries in revenue records was rejected. Aggrieved by the same, the present writ petition is filed. 5 . The respondents have filed a detailed counter. It is stated that the land in Sy.No.403 of Shaikpet Village is a Government land. In the revision book, an attempt was made to tamper with the records and an entry was made against Sy.No.403 and it was rounded off and in its place 405, 406 and 407 were written as initial survey numbers. These numbers are not existing in Shaikpet village. However, revision survey numbers were shown as 175, 176 and 197 against these non-existing imaginary and ghost Sy.Nos.405, 406 and 407 and that Sy.Nos. 175 and 197 were shown as patta land and Sy.No.176 as a graveyard. With the intention to grab the Government land, the records were tampered with and one such attempt of the petitioner is the application made by him on 30.12.1993. It is stated that the petitioner made an application dated 30.12.1993 seeking correction of entries in Town survey lands of T.S.No.3/2 block – K of ward –89 of Shaikpet village. It is stated that the town survey was conducted during the year 1964 to 1971 after issuing notification under Section 6(1) of Andhra Pradesh Survey and Boundaries Act, 1923. Final notification was published as provided under Section 13 of the said Act, which was gazetted in A.P. Gazette no.60 dated 25.9.1976 and as such the entries made in the Town Survey and Land Register became final as they were not challenged by way of civil suit as provided under Section 14 of the Act. As the petitioner has not produced original documents to establish his claim, memo dated 13.9.94 was issued to produce the documents, but the petitioner did not produce the documents and, therefore, considering the request of the petitioner on the basis of the record, order dated 15.11.1994 was passed rejecting the request of the petitioner for correction of entries in town survey land records. The petitioner without disclosing this fact, filed W.P.No.25022/1995 for a direction for rectification of town survey records on his representation dated 30.12.1993 and for consequential relief. As this court disposed of the writ petition at the admission stage, the respondents had no opportunity to produce the records. It is stated that on 3.11.1995 pattas were issued to 13 Class IV employees at the rate of 60 sq yards in terms of G.O.Ms.NO.589 Revenue (Assn-III) Department dated 10.7.1991. The fact that the representation of the petitioner dated 30.12.1993 was disposed of on 15.11.1994 and the land was allotted to Class IV employees as per the G.O. on 3.11.1995, could not be brought to the notice of the court, as the writ petition was disposed of at the admission stage directing to dispose of representation of the petitioner dated 30.12.1993 within four weeks and also directed not to recreate any third party interest. In the present writ petition, this court granted interim orders dated 24.11.1995 to maintain status quo obtaining as on the date of this order with regard to the construction activity or in any way altering the nature of the petitioner’s land bearing Sy.No.197/T.S.No.3/2 Block-K ward- 89 admeasuring 5203 sq. yards situated at road no.5, Banjarahills, Shaikpet village in any manner, whatsoever pending further orders on the petition. It is stated that much prior to the interim orders of this court, the representation of the petitioner for correction of entries in Town Survey Land Records was rejected on 15.11.1994 on the basis of the material available on records and pattas were granted on 3.11.1995 in favour of class IV employees. It is stated that the Government is the owner of the land and Sri Syed Mohd Mohiuddin has not been recorded either as pattadar or possessor over the land in question and the petitioner has not stated as to how his predecessor in interest has got title over the land in question. The petitioner paid the nala tax from 1963 to 1994 only with an intention to grab the Government land. Since the said Syed MohdMohidduin has no title, he cannot convey to the same to others. It is stated that the land in question is in T.S.No.3/2 Block K ward 89 and is classified as Government land as per the town survey conducted. As per Section 24 of the A.P. Telangana Area Land Revenue Act, 1317 Fasli, all lands vest with Government, unless such rights are established by the persons who claims title to the land. The petitioner has not established as to how his predecessor in interest got Government land and nobody is in possession over the land in question. It is stated that the petitioner has not filed any civil suit for correction of town survey entries within three years from the date of gazette notification as stipulated under Section 14 of the A.P. Sruvey and Boundaries Act, 1923. The gazette notification was published in A.P. Gazette No.60 dated 25.9.1976. It is stated that a similar writ petition was also filed in respect of the same T.S.No.3/2 by one Sri G.Das in W.P.No.28131/1997 contending that he is a pattadar of Sy.No.115/2 of Khairthabad and the same correlated to T.S.No.3/2 ward 89 Block ‘K’ which is absolutely incorrect and the writ petition is speculative in nature. 6 . This court by order dated 24.11.1995 while ordering notice before admission, ordered that in the meanwhile status quo obtaining as on the date of this order with regard to the construction activity or in any way altering the nature of the petitioner’s land bearing S.No.197/TS3/2, Ward no.89, Block no. K. admeasuring 5,203 sq. yards situated at road no.5, Banjara hills, Shaikpet village in any manner whatsoever pending further orders on this petition. 7. Complaining that the respondents have violated the above interim orders of this court, the petitioner filed contempt case in C.C.No.1895/1997. The respondents have filed counter and denied the flouting of the orders of this court and reiterated the averments made in the counter affidavit filed to the main writ petition. It is stated that the after the receipt of the contempt notice on 15.2.1998 the Mandal Revenue Officer Shaikpet was informed on 17.2.1998 about the status quo orders of this Court dated 24.11.1995 and memos were also issued to the then Mandal Revenue Officer, Shaikpet and Revenue Divisional Officer on 7.3.1998 and 10.3.1998 calling for their records. It is further stated that at present there is no activity in the land in question and the Class IV employees to whom the land was allotted on 3.11.1995 much earlier to the order of the Hon’ble Court dated 24.11.1995 have constructed their houses and residing therein. It is stated that the respondents have not violated the orders of this order. 8. The learned counsel appearing for the petitioner reiterating the writ averments, submitted that the petitioners have paid the non-agricultural tax right for more than thirty years. He submitted that the petitioner has asserted his claim to ownership and brought to the notice of the 3rd respondent that he is in possession and enjoyment of the land and also produced title of his predecessors right from 1916 pahanies and in spite of producing the documentary evidence, the impugned proceedings do not refer to the said documents. He contended that the impugned order was passed without giving any opportunity and the order was not communicated to the petitioner and it was only on 18.11.95, the said orders were furnished. He contended that even the impugned order do not refer to the survey numbers. He stated that the Government land in Shaikpet village is in Sy.No.403 and the present land is far away from the said survey no.403. However, he further contended that as per the respondents the town survey was conducted, but the same is without any notice under Section 9 of A. P. Survey and Boundaries Act, 1923 to the petitioners, as they are the owners and, therefore the survey is not valid. He further contended that in order to circumvent the orders of this court, the respondents served the impugned proceedings on 18.11.1995 with anti date and the same is illegal. He also submitted that the respondents cannot improve their case or justify the impugned order, where even the survey numbers were not mentioned, by filing the written statement and the same is contrary to settled principles of law. He finally submitted that though the dispute of title cannot be gone into under Article 226 of the Constitution of India, in view of the illegalities pointed out above, the impugned order is liable to be set aside. With these averments, the counsel for the petitioner sought for setting aside the impugned proceedings dated 15.11.1994. 9 . On the other hand, the learned Special Government pleader vehemently contended that the Government is the owner of the land. He stated that the land in Sy.No.403 of Shaikpet village is a Government land and records were tampered with and an entry is made against Sy.No.403 and it was rounded off and in its place Sy.Nos.405, 406 and 407 were written and in revision survey numbers were shown as 175, 176 and 197. It is stated that the petitioner is claiming Government land in Sy.No.403 on the basis of alleged gift deed etc. He stated that the town survey was conducted during the years 1964 to 1971 after issuing notification under Section 6(1) of Andhra Pradesh survey and Boundaries Act, 1923 and gazette was published and since no suit was filed for correction of entries within three years, the entries in revenue records that the land is Government land has become final. He stated that the representation dated 30.12.1993 of the petitioner for correction of entries in revenue records was already disposed of 15.11.1994 and without disclosing this filed, he earlier filed writ petition in W.P.No.25022/1995 and obtained orders. He stated that the land was allotted to class IV employees on 3.11.1995 and they have constructed the houses. He also stated that the case of the petitioners in the writ petition is that the impugned order was passed without notice and it is not their case that the order is anti dated and, therefore, the contention in this regard is untenable. He finally contended that these disputed questions of facts cannot be decided under writ jurisdiction. Referring to the copy of the gift deed relied on by the petitioners, he stated that in the gift deed even the extents are also not properly mentioned. He stated the entries in revenue records will not confer any title and a regular civil suit has to be filed to establish title. In support of his contention, he relied on the judgments of the Apex Court in DURGA DAS v. COLLECTOR, STATE OF H.P. v KESHAV RAM, DALIP SINGH v. SIKH GURDWARA PRABHANDAK COMMITTEE and TENZING NAMGYAL v. MOTILAL LAKHOTIA. 10. The impugned order reads as follows: “ GOVERNMENT OF ANDHRA PRADESH Office of the Dist. Collector (Survey & Land Records) Hyderabad District. Lr.No.B3/679/94 Date:15-11-1994 Sub: Land – Hyd.Dist – Golconda Mandal – Shaikpet village – Sy.No.197 T.S.No.3/2 (part) Block ‘K’ of ward no.89 - Regarding. Ref: A/O Sri M.Shujath Ali Khan, dt. 30-12-1993. ----- The applicant is hereby informed that his request for correction of the entries made in the town survey records in R.S.No.197 corresponding to town Survey No.3/2 (part) block ‘K’ of ward No.89 Shaikpet village has been examined with reference to the connected records. As per the old survey records the land claimed by the applicant is a Government land. During Town Survey operations also the said land has been treated as Government. The claim of the applicant is based on the revision survey records which are not implemented. He is further informed that he submitted the Xerox copies of the alleged land revenue receipts with revision survey no.197. Since the revision survey has not been implemented, the question of issue of land revenue receipts with revision survey number 197 does not arise. The Xerox copies of alleged land revenue receipts seems to be not genuine with some interpolations. The applicant also could not produce the originals of the said land revenue receipts. In view of the above the applicant is informed that there is not valid basis for correction of Town Survey records in respect of Town Survey No.3/2, Block ‘K’ of ward No.89 of Shaikpet village. Sd/- Collector, Hyderabad District.” 11. From the above impugned order it could be seen that on the application made by the petitioner for correction of records, the 1st respondent – Collector stated that the land claimed by the petitioner is the Government land as per the old survey records and that during the survey operations also the said land has been treated as Government and the claim of the applicant is based on the revision survey records which are not implemented. From the impugned order it appears that the petitioner produced the Xerox copies of the revenue recipes. Referring to these receipts, it is stated that since the revision survey has not been implemented, the question of issuance of the land revenue receipts with revision survey number 197 does not arise and the respondent also disputed the genuineness of the Xerox copies, as there are some interpolations. It is stated that the petitioner did not produce the original land revenue receipts and accordingly the request of the petitioner was rejected. But the case of the petitioner is that he has produced the original documents in support of the claim, but they were not considered. The respondents in the counter have specifically stated that they have issued memo dated 13.9.1994, requesting the petitioner to produce the documents, but the petitioner did not produce the same and, therefore, considering the records, the request of the petitioner was considered and the impugned order was passed. 12. Further it is it to be seen that the petitioner in the application made to the 1st respondent has asked for correction of entries in revenue records. In the writ petitioner, the petitioner apart from seeking direction for quashing the impugned order, sought a direction to restore the above said land to the petitioner. Therefore, this court is of the opinion that he is virtually seeking restoration of possession in the writ proceedings under Article 226 of the Constitution of India. 13. The case of the petitioner is that they became owners and possessors of the land to an extent of Ac.1-03 guntas forming part of Sy.No.197 (TS.No.3/2), Shaikpet village road No.5 Banjara Hills by virtue of a gift deed from one Agha Hyder Hassan Mirza, who in turn got the property as gift from one Syed Mohd. Mohiuddin alias Syed Mohd. Mehdi. The petitioner admitted that mutation up to date has not been done but the entire property continues to be shown as standing in possession and enjoyment of Syed Mohd. Mehdi till the year 1984. The respondents in the counter affidavit have specifically stated that the land in Sy.No.403 of Shaikpet village is Government land and in the revision book an attempt was made to tamper with the records and an entry was made against Sy.No.403 and it was rounded off and in its place 405, 406 and 407 were written as initial survey numbers and revision survey numbers were shown as 175, 176 and 197. It is specifically stated that except Sy.No.403, the other survey numbers are not existing and they are only imaginary and the land in Sy.No.403 is Government land. According to the respondents, the petitioners are claiming the Government land. In the counter, the respondents have also disputed the possession of the petitioners. In the counter affidavit it is stated that the town survey was conducted during the year 1964 to 1971 after issuing notification under Section 6(1) of Andhra Pradesh Survey & Boundaries Act, 1923 and final notification was published as provided under Section 13 of the said Act which was gazetted in A.P. Gazzette No.60 dated 25.9.1976 and as not suit was filed for correction of entries, the entries in revenue records as per the survey conducted have become final. The petitioner is claiming the land from the original owner Syed Mohd. Mohiuddin alias Syed Hod. Mehdi, but however, he did not plead anything about his title. In the counter the respondents have specifically stated that the land is the Government land and that name of Sri Syed Mohd. Mohiuddin has not been recorded as pattadar or possessor over the land in question and the petitioner has not stated as to how his predecessor in interest has got title over the land in question. 14. It is also stated that the petitioner without disclosing the disposal of his representation dated 30.12.1994 on 15.11.1994, filed Writ Petition No.25022/1995 and that even before the disposal of the writ petition on 8.11.1995, the Government through G.O.Ms.No.589, Revenue (Assn-III) Department dated 10.7.1991 allotted pattas to 13 Class IV Employees. 15. In view of the above facts, there is serious dispute with regard to title. As per the case of the respondents, the land is Government land and town survey was conducted during the year 1964 to 1971 and necessary gazette publications were issued and admittedly no suit was filed by the petitioner for correction of entries in revenue records. Here the contention of the leaned counsel for the petitioner is that during the conduct of town survey, no notice as contemplated under Section 9 of A.P.Survey and Boundaries Act, 1923 was issued and therefore, the survey is not valid. This contention cannot be accepted for the reason, the case of the respondents is that the land is Government land and that the name of Syed Mohd. Mohiuddin through whom the petitioners are claiming title is not recorded either as pattadar or possessor. In these circumstances, the issuance of any notice as contemplated under Section 9 of the Act will not arise. But in the counter, the respondents stated that as per Section 24 of A.P. Telangana Area Land Revenue Act, 1317 Fasli, as lands west in the Government, unless the rights are established by the persons who claims title to the land. 16. The other contention of the learned counsel for the petitioner is that the impugned order is antedated. This contention also cannot be accepted for the reason that he did not take this ground in the writ affidavit and the only ground on which he agitated is that it was passed without any notice. Here it is to be seen that the impugned order was passed on the representation of the petitioner. In the counter, the respondents have specifically stated that the petitioner without disclosing this fact has filed the earlier writ petition and by the time of passing of the interim order in the present writ petition, the land was allotted to Government Drivers Association and they constructed the houses and were residing. The respondents in their counter affidavit have leveled an allegation that the revenue records were tampered with and one such attempt is the filing of the application of the petitioner on 30.12.1993. 17. The other contention of the counsel for the