THE HON'BLE SRI JUSTICE C.Y. SOMAYAJULU W.P.No. 23166 of 2004 % 26.04.2005. # M/s. Kishan Chand Foundation Trust rep.by its Chairman –Mahesh Chand. .....Petitioner Vs. $ 1.The District Collector, Hyderabad District and 2 others .....Respondent Counsel for the Petitioner: Mr. A. Narasimha Reddy Counsel for the Respondents: G.P. for Revenue <Gist: >Head Note: ? Cases referred: 1. AIR 1982 SC 1081 2. AIR 1960 A.P.134 3. 2001 (3) ALT 200 4. 2002 (1) AN.W.R. 131 (D.B.) (A.P.) 5. AIR 1985 SC 218 6. AIR 1986 SC 468 7. 2004 (6) ALD 708 8. 2004 (2) ALD 837 9. 2004 (2) ALD 139 10. 2005 (2) ALT 365 11. 1984 (1) APLJ 219 12. 1988 (1) ALT 716 13. AIR 1989 SC 997 14. 2003 (3) ALD 2 15. 2003 (5) ALD 421 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF APRIL TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO : 23001 of 2004 and W.P.M.P.No.9726 of 2005 Between: M/s.Kishan Chand Foundation Trust, H.No.3-6-292, rep by its Chairman Mahesh Chand, S/o late Prof. Kishan Chand, aged about 76 years, Occ: Business, R/o 3-6- 161, Hyderguda, Hyderabad. ..... PETITIONER in W.P. and W.P.M.P. AND 1 The District Collector, Hyderabad Dist. 2 The Revenue Divisional Officer, Hyderabad. 3 Mandal Revenue Officer, Himayathnagar Mandal, Hyderabad. .....RESPONDENTS in W.P. and W.P.M.P. Writ Petition filed under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in seeking to dispossess the petitioner from premises bearing No.3-6-292 (admeasuring 5,641 Sq.Yards) situated at Himayathnagar, Hyderabad, as arbitrary, illegal and violative of principles natural justice and further declare the action of the respondents in seeking to dispossess petitioner as contrary to secs.5&6 of A.P. Land Encroachment Act, 1905, and pass such other order or orders. W.P.M.P.No.9726 of 2005: W.P.M.P.is filed under Section 151 of C.P.C. to permit the petitioner to substitute and amend the Main prayer in W.P.No.23001 of 2004 as under. “Therefore in the circumstances sated above, it is prayed tha this Hon’ble Court may be pleased to issue a writ, Order or Direction more particularly one in the nature of Writ of Mandamus. i. declaring the action of the respondents in seeking to dispossess the petitioner from premises bearing No.3-6-292 (admeasuring 5,641 Sq.yards) situated at Himayathnagar, Hyderabad, as arbitrary, illegal and violative of principles of natural justice and further declare the action of the respondents in seeking to dispossess petitioner as contrary to Sec.5&6 of A.P. Encroachment Act, 1905. ii. declaring the action of the 3rd respondent in passing the impugned proceedings No.A/2578/1997 Dt:20-11-2004 as arbitrary, illegal, contrary to the provisions of Land Encroachment Act and violative of Article 14 and 21 of the Constitution of India, consequently set aside the same. Counsel for the Petitioner: MR.A.NARASIMHA REDDY in W.P. and W.P.M.P. Counsel for the Respondents: GP FOR REVENUE in W.P. and W.P.M.P. The Court made the following: THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION No.23001 of 2004 and W.P.M.P.No.9726 of 2005 ORDER: Questioning the notice dated 26-06-1997 issued by the Mandal Revenue Officer, Himayatnagar (3rd respondent), under Section 7 of the A.P. Land Encroachment Act, 1905 (the Act), to show cause as to why it should not be evicted from 4678 Sq. Mts. in TS No.19 at Gaganmahal belonging to Government, petitioner, which is a Trust, filed this petition. During the course of hearing, petitioner filed W.P.M.P.No.9726 of 2005 seeking leave of the Court to amend the prayer in the writ petition as, to declare that the order of the third respondent in his Proceedings No.A/2578/1997 dated 20-11-2004 is illegal, arbitrary and contrary to the provisions of the Act and violative of Article 14 of the Constitution of India and for the consequential reliefs. 2. The case, in brief, of the petitioner is that the property bearing No.3-6-292 admeasuring 5,461 Sq. yards at Himayathnagar hereinafter referred to as the ‘suit land’ was purchased by its Trustees in 1968 under two registered sale deeds, and that it and its predecessors-in-title have been in peaceful possession and enjoyment thereof from several decades prior to 1997. When 3rd respondent served a notice under Section 7 of the Act in respect of the suit land, it, after submitting an explanation to the 3rd respondent, filed O.S.No.2364 of 1997 questioning that notice. After the said suit was dismissed after trial it preferred an appeal in A.S.No.387 of 2001 to the Court of the Chief Judge, City Civil Court, Hyderabad. After the said appeal was dismissed for default, it was told that it ought not to have filed a suit questioning the notice under Section 7 of the Act and was advised to file the writ petition questioning the notice under Section 7 of the Act in view of its title and long standing possession over the suit land, which is located in the middle of the city, in view of the ratio in GOVERNMENT OF ANDHRA PRADESH v. THUMMALA KRISHNA RAO. Since the factum of the 3rd respondent passing an order under Section 6 of the Act in proceedings No.A/2578/1997 dated 20-11-2004 (copy of which was not filed along with the counter affidavit of the 3rd respondent) came to its notice only after the Government Pleader served the compilation of material papers during the course of hearing, it was not aware that an order under Section 6 of the Act was in fact passed when it filed the writ petition, and so it did not question that order in the writ petition and since it came to know that there is an order under Section 6 of the Act which was passed without affording an opportunity of being heard to it, it filed the petition for amendment of the prayer in the petition as the one to set aside the order under Section 6 of the Act. 3. Third respondent filed his counter affidavit and additional affidavit on behalf of respondents. The case, in brief, of the respondents is that the suit land is classified as ‘G.Abadi’ and as such belongs to the Government, and so, petitioner or its predecessors can have no right or interest over the suit land. As the petitioner encroached on to the suit land illegally, notice under Section 7 of the Act dated 26- 06-1997 was served on it, calling for its explanation. Petitioner, having submitted its explanation, filed a suit in the City Civil Court seeking a decree of perpetual injunction restraining its eviction by respondents. After dismissal of the suit and the appeal preferred by it, proceedings under Section 6 of the Act were issued on 20-11- 2004 and were served on the petitioner through affixture. Since the petitioner failed to handover possession, possession of the suit land was taken over under a panchanama on 23-11-2004 and so the petition is liable to be dismissed. 4. The contention of Sri P.Prakash Reddy, learned senior counsel for the petitioner, is that since the suit land, which is enclosed by a compound wall, was purchased way back in 1968 under two registered sale deeds dated 22.07.1968 and since the other documents produced by the petitioner disclose that the suit land has been in possession of the predecessors-in-title of the petitioner from 2nd Farwardy 1354 Fasli i.e. more than 50 years prior to 1997, issuance of notice under Section 7 of the Act, when Government is claiming title thereto only on the basis of the entries in T.S.L.R., which do not per se confer title, is unsustainable. It is his contention that since the petitioner, in its reply to the notice under Section 7 of the Act issued by the third respondent, clearly asserted its title to the suit land, third respondent before passing the order under Section 6 of the Act should have considered the objections dispassionately and afforded an opportunity of being heard to the petitioner, and contended that since petitioner raised a bona fide dispute relating to title, respondents taking recourse to summary proceedings under the Act is improper as held in THUMMALA KRISHNA RAO case (1 supra). He also relied on RAVIPUDI ABBAYYA v. STATE OF A.P. and HYDERABAD POTTERIES PVT. LTD. v. COLLECTOR, HYDERABAD DISTRICT and contented that HYDERABAD POTTERIES PVT. LTD case (3 supra) was affirmed by a Division Bench of this Court in appeal and the Supreme Court dismissed the Special Leave Petition. He also relied on SOGRA BEGUM v. STATE OF A.P. in support of his contention that entries in T.S.L.R. are not conclusive proof of title. His next contention is that since the order dated 20-11-2004 passed by 3rd respondent under Section 6 of the Act shows that the petitioner was given three days time to deliver possession of the property, respondents’ alleged taking over possession of the suit land on 23-11- 2004, even before the expiry of 3 days, is a make believe affair, as the various documents like telephone and electricity bills etc. produced by the petitioner clearly show that petitioner is still in possession of the suit land. It is also his contention that since the order dated 20.11.2004 of the third respondent passed under Section 6 of the Act refers to a communication in Lr.No.B5/5522/1997 dated 19.11.2004 from the Collector, Hyderabad District, and since a copy of those proceedings is not served on the petitioner, petitioner is not aware of its contents, and contends that if the order of the third respondent is based on the instructions received from the Collector, the same would be an invalid order and so the petitioner may be permitted to amend the prayer in the main petition and the order allegedly passed under Section 6 of the Act may be set aside. 5. The learned Government Pleader raised four contentions viz., (a) petitioner is guilty of suppression of an important fact of his filing a petition for restoration of A.S.No.387 of 2001, (b) its continuing the proceedings in the Civil Court even after filing this petition is but an abuse of process of Court, (c) its rushing to this Court, without availing the remedy of appeal under Section 10 of the Act, disentitles its claiming any relief, and (d) granting the relief sought in the petition tantamounts to declaring the title of the petitioner to the suit land. It is his contention that since petitioner is disputing the title of the Government, it is for the petitioner to file a suit for declaration of its title and recover possession of the suit land from the Government and it is not necessary for the Government to file a suit for recovery of possession, because it was already taken possession of from the petitioner on 23.11.2004 under a panchanama. It is his contention that the ratio in THUMMALA KRISHNA RAO case (1 supra) does not apply to the facts of this case, as in that case there was a doubt whether the three plots of land, claimed by Thummala Krishna Rao, who purchased them from Nawab Habibuddin were the subject matter of the acquisition proceedings initiated by the Government of Hyderabad for the benefit of Osmania University, and whether Osmania University, had lost its title by operation of the law of limitation, as the suit filed by it i.e. Osmania University was dismissed on the ground of limitation i.e., on the ground that Nawab Habibuddin was found to have encroached on the said property more than 12 years before the date of the suit, and since Osmania university, after having lost the suit, activated the Government to evict the Nawab Habibuddin and his transferees summarily. Relying on AMAR NATH OM PRAKASH v. STATE OF PUNJAB he contended that the observations in THUMMALA KRISHNA RAO case (1 supra) relied on by the learned senior counsel for the petitioner must be read in the context in which they appear, and that decision cannot be treated as a statute. He also relied on the following observations in PRAKASH AMICHAND SHAH Vs. STATE OF GUJARAT. “Before embarking upon the examination of these decisions we should bear in mind that what is under consideration is not a ‘statute or a legislation’ but a decision of the Court. A decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Hence while applying the decision to a later case, the Court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation.” It is his contention that the conduct of the petitioner in filing O.S.No.2364 of 1997 on 07-07-1997, immediately after giving its explanation on 03-07-1997, and its filing an appeal in A.S.No.387 of 2001 against the decree of dismissal of the suit, and allowing the same to be dismissed for default, and filing this petition, on 10.12.2004 suppressing the order dated 20-11-2004 passed under Section 6 of the Act by the 3rd respondent and the 3rd respondent taking over possession as long back as on 23.10.2004 and its failure to disclose its filing a petition to restore A.S.No.387 of 2001 show that petitioner is trying to sail on two boats, and contended that these facts establish the mala fides on the part of the petitioner. It is his contention that on the basis of the telephone bills and electricity bills, possession of a person cannot be determined because it is well known that even after the change of ownership or change of tenant, telephone bills and the electricity bills would be sent in the old name and address for a considerably long period. He relied on MAHAVIR PERSHAD v. COLLECTOR, HYDERABAD DISTRICT and S.LINGAMAIAH v. STATE OF A.P. in support of his contention that this petition, without availing the remedy of appeal, is not maintainable. Relying on KARAKA CHINA RAMAYAMMA v. STATE GOVERNMENT OF A.P. he contended that the remedy of the petitioner, if any, is to file a suit for declaration of his title and seek recovery of possession, as final notification under Section 7 of the A.P. Survey and Boundaries Act, 1923, was published in A.P. Gazette dated 22-04-1976 in respect of the survey conducted between 1965 to 1974, and since that notification became final as it was not challenged within 3 years. It is his contention that since question of title of the petitioner cannot be decided in a writ petition as held in MEHERNOSH H. CHENOY v. STATE OF A.P., the petition is liable to be dismissed. 6. The learned Government Pleader produced the file relating to the case for my perusal on my direction. 7. The material documents produced by the petitioner along with the writ petition show that Mahesh Chand, Mrs. R.D.Chand, Naresh Chand and Ramesh Chand, sons and wife of late Professor Kishan chand, who are the trustees of the petitioner- Trust, had purchased two open plots of 2604 Sq. Mts each, equivalent to 2821 Sq. yards each, under two registered sale deeds dated 22.07.1968 and that those documents were registered on 24.07.1968 as document Nos.2183 and 2184 of 1968 and that on 27-12-1970, the vendees i.e. Mrs.R.D.Chand, Mahesh Chand, Naresh Chand and Ramesh Chand made an application to the Endowments Department for registration of a charitable endowment known as ‘Kishen Chand Foundation’ (petitioner) endowing open plot of land bearing No.3-6-292, Hyderguda, Hyderabad (suit land), acquired by them under the aforesaid registered document Nos.2183 and 2184 of 1968 dated 22.07.1968, as the trust property. By the proceedings in P.A.C.No.2/71 dated 19-01-1971 the Assistant Commissioner, Endowments Department (Twin Cities) had registered Sri Kishan Chand Foundation Trust, Hyderguda, Hyderabad (the petitioner), and the properties shown in the application filed by Mrs. R.D.Chand, Chairman of the Trust, under Section 3(4) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, and that petitioner-Trust obtained exemption under Section 80G of the Income Tax Act, and paid tax to Municipality on 25-08-1982 in respect of the suit land. A copy of the registered trust deed dated 10-03-1969 of the petitioner and copies of the registered sale deeds of the predecessors-in-title of the petitioner are also filed as material papers by the petitioner. 8. Copies of the registered documents produced by the petitioner prima facie show that petitioner and its predecessors-in-title have been in possession of the suit land, which is enclosed by a compound wall, in an important locality in the city, from over 50 years prior to 1997. Except the notice under Section 7 of the Act and the Gazette of 22-04-1976 respondents did not produce any other document to show that they asserted their title to the suit land by issuing any notice either to the petitioner or to its predecessors-in-title under the Act prior to 1997 or to show that either the petitioner or any of its predecessors-in-title ever admitted the title of the Government to the suit land. 9. A Division Bench of this Court in SPECIAL DY.COLLECTOR v. K.L.BAPUJI while considering the purport of the ratio in THUMMALA KRISHNA RAO case (1 supra), relied on by the learned counsel for the petitioner, observed as follows in para-2. “Justice Chinnappa Reddy (as he then was) by a judgment, following an earlier judgment of this Court in Meharunnissa Begum v. State of Andhra Pradesh 1970 (1) A.L.T. 88 in which a Division Bench of this Court affirmed the view taken by the learned single judge, held that the statute enables the Collectors or the Tahsildars to take action under the Act only in cases where the occupation is recent or where the occupant by some action of his indicated that he admits his occupation to be unauthorized. The view taken by this Court in Meharunnissa Begum vs State of Andhra Pradesh (cited supra) was approved by the Supreme Court in Govt. of A P vs T Krishna Rao AIR 1982 SC 1081. The Supreme Court has laid down that “if there is a bona fide dispute regarding the title of the Government to any property., the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Sec.6 for evicting the person who is in possession of the property under a bona fide claim or title”. The court further held that the summary remedy prescribed by Sec. 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title, That procedure is, therefore, not the due process of law for evicting the alleged trespassers. The court further observed: “It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bonafide. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law”. Giving examples of property in respect of which summary proceedings under Sec. 6 and 7 of the Act could be taken, their Lordships pointed out that “a person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is unauthorized occupation of property which is declared by Sec.2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act”. (emphasis supplied) A learned single Judge of this Court in SHIVALINGAPPA v. STATE OF A.P. while considering the right of the Government to invoke the provisions of the Act against a person in long standing possession of government property, held as follows at page 718. “Some cases say that the occupation should be of recent origin for allowing this Act to be put into force. I cannot agree. If the Act were to be applied it cannot be given this meaning to this Act. In my opinion this Court cannot legally speaking restrain the Government from applying this Act on the ground that the encroacher has been there for a long period of time. Long occupation which is not ripened into adverse possession cannot be a ground to refuse enforcement. Time is not in those circumstances capable of creating a bonafide dispute or title.” (emphasis supplied) 10. As stated earlier, copies of the registered documents produced by the petitioner show that petitioner and its predecessors-in-title are in occupation of the suit land for more than 50 years openly and in their own right, by enclosing it with a compound wall, and that the suit land also was registered as trust property, by the Endowments Department way back in 1971. It is well known that third parties can acquire title, even to government property, by being in adverse possession for over 30 years. While sending a reply to the notice issued to it under Section 7 of the Act by the 3rd respondent, petitioner enclosed copies of the sale deeds dated 22-07-1968, judgment copy in O.S.No.14 of 1962 dated 24-12-1967 referred to in those sale deeds, a copy of the deed of trust, communication received from the Special Officer, Municipal Corporation of Hyderabad, Town Planning Section, in File No.292/6/3/8286/ 1069 dated 31-07- 1986, asking it to pay Rs.42,115/- for processing its application. After receiving that reply with enclosures, the following note was put up before the 3rd respondent, as seen from the file produced by the learned Government Pleader. “Submitted Kindly see the reference 2nd cited wherein Sri Mahesh Chand filed a document which can be seen Flag (A), (B) and (C) and other relevant documents also filed. In this regard the file may be referred to L.G. Court. S.T.O. Sd/- 10.07.97 Yes. Today itself Go & meet G.P.Shariff Sd/- xxx-23.7.97” So, it is prima facie clear that the first reaction of the 3rd respondent, after receiving the reply from the petitioner was to proceed against the petitioner under the provisions of the A.P. Land Grabbing (Prohibition) Act, 1982. 11. Petitioner filing O.S.No.2364 of 1997 seeking an injunction, from eviction from the suit land, is not and cannot be a bar for the 3rd respondent initiating proceedings against the petitioner under the provisions of the A.P. Land Grabbing (Prohibition) Act, 1982, for recovery of the suit land as contemplated by him in the above noting. But, no proceedings, admittedly, were initiated under the Land Grabbing (Prohibition) Act, 1982, seeking eviction of the petitioner from the suit land. 12. After 3rd respondent received a copy of the judgment in A.S.No.387 of 2001, he made the following endorsement on 19.11.2004 on the copy of the judgment while marking it to the Deputy M.R.O. “Pl. verify in Collectorate any further orders if any passing on this subject matter and report immediately.” The notings in page 11 of the file produced by the learned Government Pleader reads as follows- “Ref:-Collector’s Lr.No.B5/5522/97, Dt.19.11.04 43) As Per NF Para 42 I had been to the Collectorate B5-Section Asst. and received the letter cited at reference. 44) Kindly peruse the reference cited, wherein it is requested to take over possession of the suit schedule land immediately and report compliance. 45) Submitted