IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY NINTH DAY OF MARCH TWO THOUSAND AND FIVE PRESENT THE HON'BLE SRI DEVINDER GUPTA,THE CHIEF JUSTICE and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT APPEAL NO : 1903 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 01/11/2002 in WP NO : 10242 OF 1992 on the file of the High Court.) Between: 1 G.Venkat Ram Reddy S/o.G.Krishna Reddy R/o.H.No.3052 Burtonguda, Bolaram, Secunderabad 2 G.Panduranga Reddy S/o.G.Krishna Reddy H.No.3052 Burtonguda, Bolaram, Secunderabad 3 G.Sudershan Reddy S/o.G.Krishna Reddy H.No.3052 Burtonguda, Bolaram, Secunderabad 4 G.Jaganmohan Reddy S/o.G.Krishna Reddy H.No.3052 Burtonguda, Bolaram, Secunderabad 5 G.Krishna Reddy S/o.G.Narayan Reddy H.No.9-78/2 Burtonguda, Bolaram, Secunderabad 6 G.Gopal Reddy S/o.G.Malla Reddy H.No.9-78/2 Burtonguda, Bolaram, Secunderabad ..... APPELLANT(S) AND 1 Smt.Najeebunnisa W/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar Golconda Fort, Hyderabad 2 Smt.Afzalunnisa D/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar, Golconda Fort Hyderabad 3 Mohd. Asifur Rahman S/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar Goclonda Fort, Hyderabad 4 Smt.Waheedunnisa D/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar, Golconda Fort, Hyderabad 5 Smt.Qamarunnisa D/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar, Golconda Fort, Hyderabad 6 Mohd Khaleel Ur Rahman S/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar, Golconda Fort, Hyderabad 7 Ahmedunnisa D/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar, Golconda Fort, Hyderabad 8 Sirajunnisa W/o.Mohd Ismail H.No.9-10-99/10 Risala Bazar, Golconda Fort, Hyderabad 9 Mohd Shafiur Rahman S/o.Gulam Jeelani H.No.9-10-99/10 Risala Bazar, Golconda Fort, Hyderabad 10 Meherunnisa W/o.Mohd Siddique H.No.9-10-99/10 Risala Bazar, Golconda Fort, Hyderabad 11 Jt Collector Rangareddy District at Hyderabad 12 Revenue Divisional Officer Chevella, Rangareddy District 13 G.Ramachandra Reddy not necessary to the Writ Appeal 14 G.Raghava Reddy not necessary to the Writ Appeal 15 G.Dharma Reddy not necessary to the Writ Appeal 16 G.Balwant Reddy not necessary to the Writ Appeal 17 S.Kamalamma not necessary to the Writ Appeal 18 G.Shankaramma not necessary to the Writ Appeal 19 G.Maryam @ Nagamani not necessary to the Writ Appeal 20 V.Pushpamma @ Punnamma not necessary to the Writ Appeal 21 G.Santhamma not necessary party to the Writ Appeal 22 G.Shankar Reddy not necessary party to the Writ Appeal 23 G.Bal Reddy not necessary party to the Writ Appeal 24 Soma Laxminarasamma not necessary party to the Writ Appeal .....RESPONDENT(S) Counsel for the Appellant: Mr K.Pratap Reddy, Senior Advocate for MR.A.ANANTHA REDDY Counsel for the Respondent No 11 & 12: GP for Revenue Counsel for respondents 1 to 10 : Mr P.V.Ravindra Kumar The Court made the following judgment: JUDGMENT: (Per the HON’BLE THE CHIEF JUSTICE SHRI DEVINDER GUPTA) *** Appellants herein are respondents 3 to 6 and 15 and 16 in W.P.No.10242 of 1992 out of which the present appeal has arisen. Respondents 1 to 10 are the writ petitioners. Respondents 11 and 12 are the official respondents whose orders were challenged in the writ petition. Respondents 13 to 24 are proforma respondents who were arrayed as respondents in the writ petition. We are referring to the parties in the appeal as they were arrayed in the writ petition. Appeal is against the Judgment of the learned single Judge in W.P.No.10242 of 1992 dated 1.11.2002 allowing the writ petition and thereby directing the official respondents to restore possession of the land in question to the writ petitioners within a period of eight weeks from the date of receipt of copy of the order. The writ petitioners had questioned the legality and validity of the order passed by the Joint Collector, R.R. District in File No.B3/6703/85 dated 28.4.1992 thereby confirming the order of the Revenue Divisional Officer, Chevella dated 8.5.1985 in File No.L/3501/83 with a prayer to quash and set aside the same as illegal, arbitrary and void and to direct the Revenue Divisional officer, Chevella to restore possession of the land to them. This case has a chequered history. We are taking note of some admitted factual aspects involved in the case on the basis of which arguments were addressed before us by learned counsel appearing for the parties and we will also refer to some other aspects and points of law on which parties are at variance. Shaik Maqdoom, the ancestor of the petitioners was granted 8 plots of cultivable land (MAQTAT) measuring approximately 495 Bighas equivalent to about 120 Acres as Maqtedar besides Inam lands in Turkapally village, now in Medchal Taluk, Ranga Reddy District. On his death, the Maqtat plots and Inam lands were allowed to be retained under the possession and enjoyment of his sons Shaik Nadeem and Ghulam Mohd. from the beginning of the year 1231 Fasli (1820 AD) by a Sanad issued under the seal of Raja Chandulal Bahadur. The lands were being enjoyed by the Maqtedars for quite some time and later by their successors. After setting apart considerable portion of the land for cultivation, Maqtedar Sri Shaik Shah Ali by a “Qawlnama” (agreement) leased out some of the lands for a period of ten years to the predecessors of respondents 1 to 12 in the year 1928 (1338 Fasli). It is this portion of the land, which is subject matter of the present controversy. The Maqtedar died in or about 1930 AD. There was already an Inam inquiry pending about the Inam. It appears that after death of the Maqtedar, the Inam inquiry stood dismissed in default for non-appearance on 1.2.1340 Fasli. The Tahsildar received an order through Letter No. 152 dated 16.2.1340 Fasli to take the Maqta and Inam lands under Government’s supervision and to report compliance in two weeks. Through Letter No.99 dated 26.4.1340 Fasli the Tahsildar reported compliance that Maqta has been taken under supervision of the Government. Zimma Patrak Havala Patti was submitted by Mukhaddam Patwari on 20th Bahman 1340 Fasli in File No.72/96/1340 Shumali. Facts and circumstances may also be noticed under which the Inam inquiry had been ordered. One Mohammed Shah Ali and Ghulam Mohammed had filed a claim petition dated 5th Aban 1322 Fasli in the District Atraf Balda stating that the Maqta and Inam lands were granted to their ancestor Shaik Shabaz and later a fresh Sanad was granted in the name of Ghulam Mohd. and Shaik Nadeem, sons of Shaik Maqdoom under the seal of Raja Chandulal Bahadur. They claimed that they were also entitled for a share in the Inam. This petition set the ball rolling for an inquiry to be made as regards the Inam in which some shareholders of the Maqta also appeared as Uzurdars. Before final decision could be taken, the file was closed pending receipt of the orders regarding Inam inquiry of the Royal Grants situated in the Jagir villages. Later on in compliance of the orders of the District Atraf Balda through Letter No.64 dated 26.1.1329 Fasli, the parties were called for inquiry and proof about the Royal Grant. As the parties did not pursue the case, it was dismissed in default on 28.8.1332 Fasli. On submission of a review petition, the case was re- admitted but was again dismissed in default on 1.2.1340 Fasli by Order No.22. After the Maqta was taken under the supervision of the Government as aforementioned, Mohammed Shah Ali and others reappeared in the Inam Inquiry during 1345 Fasli. Their late appearance was condoned by the competent Authority and the District instructed the Division through Letter No.969 dated 3.6.1346 Falsi for early completion of the Inam inquiry. The Division issued notification, which was published in Government Gazette No.46, dated 15.12.1346 Fasli. Statements of Maqtedars and of Purshottam Rao, Patwari of Turkapalli village were recorded from 2.2.1347 to 2.12.1347 Fasli. Copy of Sanad of Raja Chandulal Bahadur dated 2.1.1237 F. relied upon by the petitioners’ predecessors was also sent for verification to Daftar Peshkari. The said office through Letter No.97 dated 26.8.1347 sent a certified copy of the Maswada Sanad dated 2.1.1337 Fasli. In the meantime, the case was transferred to the District. Daftar Peshkari, through letter No.137 dated 20.10.1347 Fasli informed the District that a copy of Maswada Sanad was already sent to the Division. At this stage, there was entry of another claimant i.e Ali Mohammed Khan, Jagirdar of Turkapally village who also filed a petition dated 2.12.1347 Fasli for impleadment as a party to the Inam Inquiry. Ahmed Yawar Jung, another shareholder of the Jagir, also filed a similar petition dated 23.8.1349 Fasli, which was declared untenable on 15.9.1350 Fasli. He filed another petition dated 16.3.1350 Fasli. Impleadment was ordered saying that impleading of Jagirdars as parties does not mean that they will be given any right to cross-examine the witnesses or to challenge the proceedings already completed. Though the Jagirdars were impeladed, they did not seriously pursue their case and their objection petition was dismissed in default. They applied for restoration but ultimately rejection order was approved by the Sadrul Maham Sarfakhas on 15.4.1358 Fasli. In the meanwhile, the lands in question given on lease in 1338 Fasli continued to remain with the predecessors of respondents who continued to cultivate the same as Qawldars (Tenants) till 1348 Falsi, when the period of their lease expired. After the expiry of the lease period, the qawldars (lessees) applied to the Collector for continuation of their lease. Their request was rejected by the Collector, who by Letter No.904 dated 4.9.1354 Falsi instructed the Tahsildar, Medchal to conduct an open auction for eksala cultivation. Auction could not take place. Resultantly, the respondents’ predecessors continued to remain in occupation. Again on instructions of the Collector, the Tahsildar, Medchal fixed the date of auction as 22nd Azur 1355 Fasli. The occupants again by petition dated 22.1.1355 Fasli approached the Collector stating that they were old occupants of the lands, had developed the lands after huge expenses and as such requested that the Maqta lands may not be auctioned and their possession may be allowed to be continued. The prayer was rejected on 25th Azur 1355 Fasli. They again submitted a petition on the same date with the same request in the office of the Tehsil Medchal. The Tehsil authorities tried to auction the lands but the auction was postponed. Tehsil Office ordered the old occupants to continue depositing the amount of Qawl It may also be noticed that while the Inam inquiry was pending, the Jagirdar of Turkapally village who was also participating in the said inquiry, on 13.8.1357 Fasli, granted pattas to qawldars in respect of the Maqta lands as also of the Inam lands in question on the ground that as on that day no Maqta or Maqtedar was in existence and that the maqtedars had not appeared before him for confirmation of the maqta. After the police action and abolition of Jagirs, the Sarfekhas was merged with Diwani. The Inam inquiry file was received in Office of the Nazim Atiyat and was transferred to the Hyderabad District in October, 1951. The Maqtedars appeared in the District and the Maqta Inam was ordered to be prepared as the Inam inquiry proceedings were found to be complete. In the meanwhile, on 16.1.1952, some of the lessees/cultivators including one Sri Bega Reddy and others filed objections stating that Maqtedars are not the genuine persons and that the Inam inquiry proceedings may be taken up in their presence also as they were pattedars of the lands in question. They claimed this right on the basis of the patta granted to them by the Jagirdar on 13.8.1357 Fasli. They were allowed to pursue the case only as of Muqbirs. On 14.10.1952, some of the predecessors of the Respondents filed another application before the Collector, Hyderabad, claiming that they were the pattedars of Turkapally land, the Tahsildar, Medchal had also submitted a detailed report on 22.1.1357 Fasli, some persons were claiming succession showing themselves as Maqtedars and that the case was under consideration by the Collector. After hearing all the parties and taking into consideration the evidence produced, the Collector decided the Inam inquiry holding that the Maqtedar was the real Maqtedar. Consequently, Maqta and Inam lands were ordered to be restored as claimed by the Maqtedars in view of the Sanad and Panchanama and “Zimma Patrak” filed by them. Bega Reddy and others challenged this order in appeal before the Nazim Atiyat, who by his order dated 10.3.1955, set aside the order of the Collector and remanded the case to the Collector with direction to examine the genuineness of sanad and confirming the mash in favour of the right persons. After hearing the parties, the Additional Collector decided the case afresh by his order- dated 14.10.1957. As regards sanad, it was held that mere existence of the Maswada without any indication to its approval and issue cannot be considered enough to establish the existence of the Sanad. But a portion of the lands claimed comprising 29 survey number and measuring 157 Acres and 29 guntas stood confirmed as the other records, the Jagir Muntakhab, attachment proceedings, oral evidence and the settlement records established the existence of the Maqta in the Jagir village. He thus confirmed that the Maqtedars are entitled to Ac.157.29 gts. Aggrieved by above order, the Maqtedars as well as Bega Reddy filed three appeals before the Nazim Atiyat, who, by his Decision No.170 dated 8.2.1965, allowed the appeal and the review filed by Syed Mohiuddin Ahmed and others (the predecessors of the Petitioners) and rejected the appeal filed by G. Krishna Reddy, Bega Reddy and others (the predecessors of the Respondents). He held that the available record establishes beyond doubt that the respondents were only the qawldars, as such, they cannot be accepted as pattedars of the lands in question. He also held that the Respondents status of qawldars was not changed and there the Respondents had also been admitting them to be qawldars. While allowing the appeal of the petitioners, Nazim Atiyat held that as the Sanad, Panchanama and Zimma patrak have been declared genuine, the mash claimed by the Maqtedars deserves to be confirmed in their name. The sanad contains the names of the eight Bowlies and the area of the lands under them is shown to be 4 ½ Chawar maqta and one Chavar inam lands in “Gaze-Elahi”. As such the area comes to (660) acres of land. Muntakhab was ordered to be issued accordingly with the specification of survey numbers furnished by the Maqtedars. Later Muntakhab was issued on 27.5.1965 in favour of the Maqtedars. Inam inquiry thus concluded by this order. Against this order of Nazit Atiyat, W.P.No.735 of 1965 was filed in this Court by the Respondents which was dismissed on 12.2.1970. Respondents’ appeal (W.A.No.72 of 1970) against the said decision was also dismissed with costs. SLP. (C1/IL).No.364 of 1970 was also dismissed by the Supreme Court on 3.4.1972. As a result of the aforementioned decision of the Nazim Atiyat which was upheld by the order in W.P.No.735 of 1965 and W.A.No.72 of 1970 by this Court and by the Supreme Court in SLP, the petitioners had been making all efforts to seek restoration of possession of the land in question. According to them, the period of lease had already expired, therefore, the respondents had no right to remain in occupation of the land, more particularly, after the order of the Nazim Atiyat had become final. Possession of the land could not be restored till date, as we will notice in later part of our judgment. In the meanwhile, subsequent development in law took place, which has led to the second limb of litigation between the parties. The subsequent development which took place is the coming into force of The Andhra Pradesh (Telangana Area) Abolition of Inam Act, 1955 (Act No.VIII of 1955 ) (for short the “Inam Act”). This Act was published in Hyderabad Gazette, Extraordinary No.86 on 10.4.1954 and received the assent of the President on 16.7.1955. It was thereafter published in Hyderabad Gazette, Extraordinary No.90 on 20.7.1955. It applied to the whole area of the Telangana area of the State of Andhra Pradesh and to all inams as defined in Clause (c) of sub-section (1) of Section 2. Except for the remaining provisions – Sections 1, 2, 3, clauses (d), (g), (h) and ((i), Sections 33 to 34, section 35 to the extent to which it enables rules to be made for the purposes of the aforesaid sections, were to come into force on the date of publication of the Act in the Official Gazette. The rest of the provisions of the Act were to come into force on such date as the Government by notification in the official Gazette would appoint. Admittedly, the said date is 1st November, 1973 when rest of the provisions of the Act came into force. 20.7.1955 and 1.11.1973 are the crucial dates, which have to be kept in mind while dealing with several aspects involved in this case. Under section 4 of Inam Act, every inamdar with effect from the date of vesting is entitled to be registered as an occupant of all inam lands other than the lands mentioned in clauses (a), (b) and (c) of Section 4 of the Act. Every kabiz-e- kadim, permanent tenant, protected tenant and non-protected tenant in possession of the land as on the date of vesting, subject to certain other conditions, is entitled to be registered as occupants, as provided under sections 5, 6, 7 and 8 of the Inam Act and entitled to be granted occupancy rights. After the Inam Act came into force, being a beneficial legislation in favour cultivators of the land, the petitioners as well as respondents approached the Revenue Divisional Officer, East Division (Inam) by separate petitions for registering them as occupants. In File Nos.A/2295/75 and 2293/75, the Revenue Divisional Officer, Hyderabad East Division considered the claims of the Inamdars and the tenants for grant of occupancy rights over the land in question under sections 4 and 8 respectively of the Inam Act. The Revenue Divisional Officer held that the Respondetns were Kabiz-e-kadim and they alone are eligible for occupancy rights and accordingly granted occupancy rights in their favour and rejected the claim of the inamdars. Against the orders of the Revenue Divisional Officer, the inamdars filed appeals in Case Nos.B3/14443/79 to B3/13453, which were dismissed by the Collector, Ranga Reddy on 4.4.1980. Against these orders of the Collector, the petitioners filed W.P.No.2171 of 1980 in this Court praying for setting aside of the orders in Case No.B3/14443/79 to B3/13453 dated 4.4.1980. During the aforementioned proceedings also the Respondents continued to remain in actual possession of the land and the petitioners, as a result of the declaration issued in their favour, on the strength of the decision of Nazim Atiyat dated 8.2.1965, simultaneously, continued their efforts to regain possession. On 24.9.1979 the Collector, Ranga Reddy District addressed a letter to the Tahsildar, Medchal, on the application of the petitioners to take immediate steps to put the petitioners in possession of the land. On the respondents petition that pending issue of final orders under the Inams Act, all further proceedings be stopped, the order of delivery of possession was put in abeyance on 4.12.1979 by the Deputy Secretary to Government Revenue Department. Report of the Collector was called for by the State Government. On 4.3.1980, the Collector, Ranga Reddy submitted his report to the Government. The Government in its turn by its order-dated 16.7.1980, vacated the earlier orders saying that for want of jurisdiction under the Act, the stay orders have to be vacated. On 5.8.1980, again a communication was addressed by Revenue Divisional Officer, Hyderabad to the Tahsildar, Medhcal, directing him to put the petitioners in possession of the land and to fix 7th August, 1980 as the date for handing over possession to the Maqtedar and to approach the police so as to ensure that sufficient force is available on that day for the said purpose. This order could not be given effect to. Thus, while on one side the petitioners were making all efforts to obtain orders for delivery of possession, in parallel proceedings under the provisions of the Inam Act, orders were obtained by the respondents for confirmation of their pattas in respect of the land in question under section 8 of the Act as non-protected tenants seeking grant of occupancy rights. On the petitioners challenging the said order dated 4.4.1980 of the Collector as well as the orders of the Revenue Divisional Officer, a learned single Judge of this Court allowed W.P.No.2171 of 1980 by judgment dated 22.2.1983 setting aside the impugned proceedings, with direction to re-examine the respective claims of the petitioners and the respondents afresh in the light of the observations made in the Judgment. Pursuant to the aforementioned directions, the Revenue Divisional Officer, Chevella conducted fresh inquiry into the matter and on 8.4.1985 in File No.L/3501/83 passed fresh order declaring the respondents as protected tenants under section 7 of the Act and rejected the claim of the petitioners for being registered as occupants under section 4 of the Inam Act. Aggrieved by the said order, the petitioners filed appeal before the Joint Collector (Case No.B3/6703/85), which was dismissed on 28.4.1992. Aggrieved by orders of the Revenue Divisional Officer and that of the Joint Collector, the petitioners approached this Court by filing W.P.No.10242 of 1992 seeking quashing of the two orders. As already noticed, the learned single Judge, by the order impugned in this appeal, set aside the orders of the Revenue Divisional Officer as well as of that of the Joint Collector, with further direction for restoration of possession, which led the Respondents in filing the present appeal. The primary order under challenge in the Writ petition was that of the Revenue Divisional Officer who in his order dated 8.4.1985 held that the lands in question had already been leased out to the predecessors of the respondents by the forefathers of the petitioners for a period of ten years in 1328 Fasli which period was subsequently renewed for another ten years in 1338 Fasli. The Maqta and Inam were taken over by the Government for supervision in 1340 Fasli. It was also held that though for supervision purpose Maqta and Inam were taken over by the Government, the leaseholders continued to remain in possession. After the Maqta and Inam came under the supervision of the Government, the Cultivators had on 20th Bahaman, 1340 Fasli submitted to the government a representation that they may be allowed to pay the lease amount to the Government instead to the Maqtedars. Despite expiry of the period of lease, for one reason or the other, the lessees continued to remain in actual possession of the land till coming into force of the Inam Act, paying the lease amount to the Government. The Respondents were held to be in occupation of the land even on the date of passing of the order by him. It was also held that the petitioners or the inamdars were not in possession of the land. They were also not in possession even on the date of vesting of Inam under the Inam Act or prior to the date of vesting or after the date of vesting. It was also held that inamdars had also not taken any steps to terminate the tenancy rights granted to the qawldars (tenants) under the provisions of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (Act XXI of 1950) (for short ‘the Tenancy Act’) and had not also filed any petition seeking resumption of the lands under section 4 of the Inam Act read with section 44 of the Tenancy Act. He held that the lands are panmakta inam lands and these inam lands (mash) are subject to the provisions of Inam Act, which provides for grant of occupancy rights in favour of various categories of persons in physical occupation of the lands under sections 4, 5, 6, 7 and 8 of the Inam Act. Though the inamdars had filed their claim under section 4 of the Inam Act for grant of occupancy rights, they were held not entitled for the same as they were not in physical possession of the land as on 20.7.1955 or on 1.11.1973. He held that the inamdars were entitled only to compensation from