THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.4432 of 2005 Dated:11.10.2007 Between: State of Andhra Pradesh, rep. by the Mandal Revenue Officer, Musheerabad Mandal, Lower Tank Bund Road, Near D.B.R.Mills, Hyderabad. .. Petitioner. And 1. Hyderabad Potteries Private Limited, H.No.1-1-365, Bakaram, Hyderabad, Rep. by its Director S. Sunil, S/o S. Krishna Rao and another. . Respondents THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.4432 of 2005 ORDER: (Per Hon’ble Sri Justice B. Prakash Rao) The petitioner herein, which is a State, is the applicant before the special Court constituted under the A.P. Land Grabbing (Prohibition) Act (for brevity ‘the Act), which has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of Certiorari assailing the correctness of the judgment and decree dated 17.02.2005 in L.G.C.No.11 of 2002, dismissing an application filed by it under Section 8(1) of the Act seeking a declaration that the respondents are the land grabbers in respect of the schedule property and consequently to evict them and deliver vacant possession and also for awarding compensation. The property involved is to an extent of 17,786.56 square meters of land in T.S.4/2, Block-B, Ward No.66 of Bakaram village, Musheerabad Mandal, Hyderabad District. The case in brief as put forth before the special Court by the petitioner in the said application is to the effect that in the town survey conducted in respect of Bakaram and Gaganmahal villages in the year 1355 and 1357 faslis respectively between 1965 and 1971 and on verification of the maps of both the villages, certain extent of area existing between these two villages is left un-serveyed nor accounted for and thus, it remained as a gap area. The said town survey was conducted by following the due procedure as contemplated under the A.P. Survey & Boundaries Act, 1923 and accordingly, a notification was published for fixing up the boundaries. Thus, the schedule property was surveyed as T.S.No.4/2, Block–B, Ward No.66 of Bakaram village to an extent of 19214 sq. meters of land and the same was recorded as Government land in Column No.20 of the Town Survey Land Register (for short ‘TSLR’). Later, a gazette notification No.43, dated 17.07.1976 was issued and it had remained unchallenged by way of any proceedings as contemplated under Section 14 of A.P. Survey & Boundaries Act, 1923. Thus, the said survey has become final. However, in December 1998, the respondents herein without having any right, title or interest of what-so- ever have illegally grabbed the schedule property to the extent as mentioned above and started making construction of multi-storied complexes. Since the schedule property forms part of the prima area of the City, it has become very valuable and therefore, the respondents by creating fictitious and fabricated documents and also obtaining permission from the Municipality though which was rejected, later the same was under challenge in the Writ Petition in W.P.No.25727 of 2000. Thus, since they do not have any legal right, they need to be declared as land grabbers and consequently for delivery of possession and the other reliefs as sought for. Contesting the claim of the petitioner, the case as put forth by the respondents in their counter-affidavit is that the entire allegations as asserted in the said application by the petitioner was denied and further it was explained that the first respondent is a Company registered under the Companies Act as long back as on 27.04.1946 and later on, it had a change in its nomenclature to that of Hyderabad Potteries Pvt. Ltd., on 10.02.1967 where initially one Sri S. Rajeswar Rao and M.K. Mudaliar were the partners, who purchased an extent of Acs.4-32 guntas of land in Sy.Nos.118 to 133 of Nampally village in pursuance of a registered sale deed dated 6th Khurdad 1353 fasli (09.04.1944) from the original owner and pattedar Sri Haji Mohd. Abdul Azeez. Later, the said two purchasers sold the said land in favour of Hyderabad Potteries Pvt., Ltd., in pursuance of a registered sale deed dated 11th Amardad 1355 fasli (31.03.1946) which specifically mentions the Bakaram village and Nampally Sivar, as ‘hamlet’ and also shows the clear identity of the land with the boundaries. Out of the said property purchased in Sy.Nos.118 to 133, certain portions were acquired by the erstwhile Hyderabad Government in two spells to an extent of Acs.15.50 cents and Acs.11.35 cents for the purpose of construction of houses known as “Labour Quarters” and in the land acquisition proceedings under the provisions of the Act, the award was passed determining the compensation and the same was carried to on a reference to the civil Court in O.P.No.63 of 1958 and 121 of 1960 and further appeals also to this Court in CCCA Nos.19 and 36 of 1961. However, the property as purchased by the respondents-Company was not acquired. The Municipality has also assigned house numbers for the factory and the adjoining premises as 1-1-365 and 1-1-365/A. Later, the said property was converted into an industrial use as per the orders of the Government in G.O.Ms.No.467, Municipal Administration, dated 25.08.1992 and the HUDA issued necessary proceedings in terms thereof. It has also been pointed out that in pursuance of the provisions of the A.P. Urban Land Ceiling Act, 1976, the Company had filed a declaration in CC No.H1/2432/76. After enquiry, the special Officer concerned had issued the proceedings declaring an extent of 1427.44 sq.mts. in the said land in Sy.Nos.118 to 133 in premises No.1-1-365/A as surplus which was handed over to the Government and the possession was also taken by it. Later, under Section 20 (1) of the Urban Land Ceiling Act, 1976, the State Government on the application of the respondents, granted exemption in G.O.Ms.No2560 Revenue (UC.III) 11.06.1980. However, since the land was not being used for the purpose of which the exemption was granted, the Government later on withdrew the said exemption by issuing G.O.Ms.No.40 Revenue (UC.III) Department, dated 09.01.1996. Out of the said extent, the respondents have constructed a multi-storied complex after prior approval of MCH, vide permit No.28/13-4/JP, 3/96, dated 01.06.1996. Several other third parties have also purchased the plots and they have occupied the same and living with their families. The Municipality had also assessed the constructions for the tax and the taxes are being paid regularly apart from the electricity and other charges including NALA tax. Therefore, having regard to such trace of such title and possession for such a long period consistently, it is they, who are the absolute owners in their own right, title and interest. Even for constructing another multi-storied complex, they applied for permission on paying Rs.50,00,000/- (Rupees fifty lakh only) towards permit fee and other charges. However, the Municipality refused the same on 26.08.2000 stating that the land is a Government land and the respondents challenged the same by filing a Writ Petition being W.P. No.25727 of 2000 in this Court to which the Collector, Hyderabad District and the Municipality were parties and where the claim of the respondents was sought to be denied and ultimately the said Writ Petition was allowed on 25.04.2001 directing the Municipality to grant permission for construction of such multi-storied complex. Thus, the claim of the petitioner that the schedule property is a Government property is wholly unsustainable and the possession of the respondents dates back even for a period of more than 60 years and therefore, they cannot be declared as land grabbers. As pointed out in the proceedings below, initially the special Court framed the following issues: 1. Whether the applicant-State has title to the application schedule property ? 2. Whether the application is barred by Limitation ? 3. Whether the rival title set up by the respondents is true, valid and binding on the applicant ? 4. Whether the respondents are land grabbers within the meaning of the Sec.2 (d) and (e) of the Act ? 5. Whether the applicant-State is entitled for compensation, if so, to what amount ? 6. To what relief ? Later, the parties went into trial and on behalf of the petitioner, P.Ws.1 and 2 were examined and Exs.A.1 to A.8 were marked. On behalf of the respondents, R.W.1 was examined and Exs.B.1 to B.33 were marked. However, during the course of arguments and the matter having been reserved, on an application filed by the petitioner in I.A.No.920 of 2003, the case was reopened and thereafter, the petitioner examined its Law Officer as P.W.3 and marked Exs.A.9 and A.10 and once again P.W.1 was recalled as per the orders in I.A.No.1305 of 2004 and marked Exs.A.11 to A.41. At the instance of the petitioner, one Sri P.V.S. Madhusudhan Rao, Deputy Director, Survey, Settlements and Land Records, Hyderabad was appointed as a Commissioner to localize the schedule property and who after conducting such localization, was examined as R.W.2 and his report was marked as Ex.C.1 along with sketches, which are marked as Exs.C.2 and C.3. The layout prepared by the Commissioner was marked as Ex.X.1. At this juncture, the respondents sought to amend their counter, which was allowed as per the orders in I.A.No.1178 of 2003 and stated that out of total extent of Acs.42.32 guntas of land in Nampally and Bholakpur villages purchased by one Mohd. Abdul Azeez, an extent of Acs.4.32 guntas of land was sold to S. Rajeswara Rao and M.K. Mudaliar under a registered sale deed dated 6th Khurdad 1353 fasli. Later, the said Mohd. Abdul Azeez sold an extent of 25.36 guntas to one S. Balaiah and an extent of 8.36 guntas to one Mohd. Moulvi Abdul Raheem Saheb. Thus, the entire property in Sy.Nos.118 to 133 was sold away under various sale deeds, which clearly shows the existence of Hyderabad Potteries Pvt., Ltd., on the North Eastern side of the schedule of the property purchased by S. Balaiah. The property belonged to S. Balayya was acquired, which was contested by his legal representatives after his death and they claimed the compensation, which was ultimately allowed. In all these proceedings, the Hyderabad Potteries Pvt. Ltd., was being shown on the North-Eastern side of their property. Therefore, all the proceedings would amply show the existence of the respondent-Company all along. On these additional pleadings as put forth by the respondents, an additional issue was framed to the effect that “Whether the respondents have perfected their title by adverse possession ?” The petitioner filed a rejoinder once again reiterating its claim in respect of the schedule property based on the survey records and denying the claim and the title as put forth by the respondents herein and also denying that those sales and purchases as referred to do not pertain to the schedule property since the boundaries do not tally. The proceedings in regard to the acquisition of the property in Sy.Nos.118 to 133 in two spells were admitted on payment of compensation. However, it was stated that the gap area was continued to exist and further it was pointed out that all the entire revenue records would show as to the existence of labour colony for which the Government had acquired the property whereas the name of ‘Hyderabad Potteries and Metal Works’ was not shown in any of those columns. It is only on the objection raised by the petitioner, the building permission was not granted. The references made to the various permissions and also the exemptions obtained are only a misleading and they have been obtained by suppressing the real facts. The Writ Petition filed by the respondent in W.P.No.25727 of 2000 challenging the refusal of the permission was ultimately disposed of at the stage of Supreme Court, directing all such questions to be decided in the present L.G.C., which was pending. Therefore, it was once again reiterated that the TSLR, which shows the entry in favour of the petitioner is a conclusive one and therefore the respondents are liable to be evicted. On a consideration of the entire evidence and the material on record from both the sides, the special Court, of which by way of majority, dismissed the application whereas one of its other Revenue Member gave a differing judgment and upholding the claim of the petitioner on the basis of the said entry in the TSLR. Hence, the Writ Petition. The main contention as sought to be made on behalf of the petitioner is primarily that having regard to such conclusive document available on the basis of an entry in TSLR, which has been marked as Ex.A.2, and which has been remained unchallenged and which is proceeding as arising out of the survey conducted after following the due procedure as contemplated under the provisions of A.P. Survey and Boundaries Act, 1923 where it clearly shows the existing gap area, it cannot be said that the petitioner does not have any right, title or interest of what-so-ever in nature and further the same is also substantiated by several other documents especially the revenue entries in support and therefore, the findings of the majority rejecting the claim of the petitioner is not sustainable. That apart, it has also been contended that the dissenting judgment given by the Revenue Member is perfectly correct and the conclusions are rightly based upon the entry in Ex.A.2 as mentioned to above and therefore, neither the reasons given by the said Member nor the ultimate finding as arrived at can be said to be erroneous. On behalf of the respondents, it has been contended that having regard to the consistent various documents, which have been produced on their behalf showing title and interest apart from the possession of the respondents all along, it cannot be said that the respondents are land grabbers and further the petitioner cannot place reliance on a mere entry in the TSLR and the survey document which has already been held to be not a document of title and thus, the petitioner has hopelessly failed to make out its primary title itself and therefore, the findings arrived at by the majority members of the special Court do not warrant any interference and they are supported by valid reasons whereas the dissenting Revenue Member only sought to proceed on the basis of the said entry in the TSLR-Ex.A.2 which cannot be sustained. Having thus heard the learned counsel from both the sides in detail and at length and on perusal of the material available on record, the main point which arises for consideration is as to whether on the facts and circumstances, the petitioner has made out any case to declare the respondents as land grabbers and consequently seek eviction thereof and for awarding other reliefs ? Before going into all other details in respect of claims on either side and the documents filed by them, it has to be taken note of the basic fact that the present case is initiated by the petitioner by filing an application under Section 8 (1) of the Act, seeking a declaration that the respondents are land grabbers and therefore, they need to be evicted. The entire case of the petitioner squarely and solely rests on the entry made in the TSLR to show that the schedule property is a ‘gap area’ and it belongs to the Government. The said document is marked as Ex.A.2. Since the said entry has remained unchallenged by any of the parties including the respondents herein, the case of the petitioner is that the same is conclusive and binding and therefore, it is not open to the respondents to contend otherwise. At this juncture, it would be convenient to refer to the very contents as contained in the application filed before the special Court of which the relevant portion consists of concise statement in the format as required under the provisions of the Act apart from filling up the other columns as contained therein: “Bakaram village was surveyed during 1355 fasli, Gaganmahal village was surveyed during 1357-F, on verification of the village maps of both these villages. It is noticed that certain area located between both these villages was left unsurveyed. As such the said area was not accounted for in both these villages and thus a gap area was formed. The application schedule land is located in this gap area i.e., unsurveyed area. Town survey of Bakaram and Gaganmahal village was conducted between 1965 to 1971 under the provisions of Andhra Pradesh Survey & Boundaries Act, 1923. Notification U/s 6 (1) of the said Act was issued before taking up survey inviting all the interested parties to show their boundaries at the time of conducting survey for determining the boundaries of the properties. The application schedule land was surveyed as T.S.No.4/2, Block-B, Ward No.66 of Bakaram with an extent of 19214 sq.mts., and it is correlated to gap area i.e., unsurveyed area as per the old survey records as such it is recorded as Government land in Col.No.20 of Town survey land register. After completion of survey notification was published U/s (13) of the Survey and Boundaries Act in District Gazette No.43, dt.17.07.1976. The boundaries shown in the records and entries made therein have become final and conclusive proof after publication of (13) notification unless they are modified by a decree of civil suit within (3) years from the date of publication of notification in District Gazette as stipulated U/s (14) of the Survey and Boundaries Act. No person has challenged in the said entries by way of filing civil suit within (3) years from the date of publication of (13) notification. The application schedule property, which was left unsurveyed during original survey is government land and it was not accounted for in both the villages and the Government is the owner of the said land and nobody is having any property rights over the said land. It is further submitted that no orders were issued to the respondents orto their predecessors in interest granting any right over the application schedule land. The respondents jointly without having any right or title over the application schedule land have illegally grabbed the Government land of an extent of 17,786.56 sq.mts., and started construction of multi storied complexes during December 1998. The application schedule land is very valuable land situated in the prime area in the city. The respondents have no manner of right or title over the application schedule land, which is a government land. The respondents are land grabbers within the meaning of the Act. The respondents are claiming the application schedule land with fictitious and fabricated documents. It is submitted that the respondents approached the M.C.H. for grant of permission for constructing of another multistoried complex. But the M.C.H. rejected the permission on 26.08.2000. Aggrieved against District Collector, Hyderabad, M.C.H. and the W.P. is pending. The cause of action arose for filing of present L.G.C. during 1996 when the respondents illegally grabbed the application schedule land and started construction of multistoried building during 2000 when the respondents applied for N.O.C. to the District Collector. There are no civil suit pending in any civil Courts pertaining to the application schedule land. Except the W.P.No.25727 of 2000 filed by respondent questioning the order rejecting to grant permission for consideration. The applicant therefore prays that this Hon’ble Court may be pleased to take cognizance of this case and allow the application as prayed for the Form-1.” From the above contents, thus makes it clear that the sole basis for the claim of the petitioner is on the entries made in the survey records showing that the schedule property was surveyed as T.S.No.4/2, Ward No.66 of Bakaram village with an extent of 19214 sq. meters showing it as a gap area i.e., unsurveyed area as per the old survey records and as such it is a government land as mentioned in column No.20 of the TSLR. Except mentioning to the aforesaid surveys as conducted in the year 1355 fasli of Bakaram village in the year 1357 fasli in Gaganmahal villages and later town survey of Bakaram between 1965 to 1971 and the consequent entries as made therein and the issuance of Gazette No.43, dt.17.07.1976, no other material is forthcoming nor referred to or mentioned much less relied on by the petitioner to show as to how the property belonged to the Government at any point of time earlier or later. There is no explanation forthcoming on behalf of the petitioner during the course of arguments or even on a perusal of the entire evidence as spoken to on their behalf as to why no other document of title or other revenue records are being produced in support of such entry in the TSLR. It is now well established in Sogra Begum and another v. State of A.P.[1] that the entries in the TSLR after survey is not a conclusive title nor can be relied on for proof or establishing the title as such. There is no dispute on behalf of the petitioner to this proposition. On behalf of the petitioner, apart from the oral evidence of P.Ws.1 to 3, several other documents are filed in Exs.A.11 to A.41, which only consist regular pahanis from the year 1956 to 1958 onwards, however, once again these entries would not in any way help the petitioner to show the title. While considering the evidence produced from both the sides vis-à-vis the documents filed by the respondents herein, the majority has opined ultimately that the petitioner has failed to establish its title and also the very basic factum of any act of land grabbing on the part of the respondents herein having regard to overwhelming evidence produced on behalf of the respondents. The special Court has taken note of the admissions made by P.W.1, who is their own witness, to the effect that the schedule land was given the Municipal No.1-1-365 of Bakaram Village and NALA tax is also being collected from the Hyderabad Potteries Pvt., Ltd., and they pleaded total ignorance of the documents filed by the respondents. The said witness also admitted about the acquisition of the land in Nampally and Hasan Ali Guda villages for the construction of labour colony as per the Awards which are marked as Exs.A.9 and A.10 and further he could not say specifically as to whether possession as such has been taken away by the Hyderabad Potteries. The evidence of P.Ws.2 and 3 was also taken note of and considered and as observed by the special Court that the survey conducted during 1965-’71 and the entries made in TSLR, no notice was served to the respondent Company and as per Exs.B.7, 8 and other documents, it establishes the possession of the respondents-Company at the relevant point of time. There is also a clear admission on the part of P.W.2 about the municipal number being given in respect of the owner as Hyderabad Potteries Pvt., Ltd. Therefore, it was observed by the majority members of the special Court that the very revenue records filed by the petitioner itself is a positive proof to establish the right and title of the respondents since long time. Though an attempt was made to place reliance on behalf of the petitioner to the effect that the name of the Hyderabad Potteries Pvt., Ltd., as existing was rounded off and in its place “G” was written, the same was not properly explained to whereas the very same document would amply show the title and possession of the respondents. This very fact that the name of Hyderabad Potteries Pvt., Ltd. was found to be existing even such a long time back which was rounded off was not properly explained and as to how and on what basis such action was taken without notice to the respondents- Company. Therefore, by taking note of the fact that except TSLR entry, there is no other record or evidence to show that the schedule land is a government land, it was held that it cannot be said that such entry in the TSLR establishes the title of the petitioner without