Andhra HC (Pre-Telangana)
M. Narsaiah And Ors. vs P. Ranga Reddy And Ors. on 26 February, 2003
Equivalent citations: 2003(4)ALD358, 2003(3)ALT168
Author: R. Subash Reddy
Bench: R. Subash Reddy
JUDGMENT
G. Bikshapathy, J .
1. All the Writ Petitions and the C.M.A. can be disposed of by a common judgment.
2. The matter has chequered career and therefore, it is necessary to trace out the genealogy of the events. The disposal of the W.P. No. 20282 of 1999 will have bearing on the other matters and therefore, the averment contained in the said Writ Petition are referred to hereinafter.
3. The validity of the G.O. Ms. No. 675, dated 7.9.1999 issued by the 1st respondent-Government of Andhra Pradesh is assailed in the said Writ Petition.
4. It is the case of the petitioner that plot No. 19 of defunct Jubilee Hills Municipality situate in S.No. 129 (old) corresponding to new S.No. 403 of Shaikpet Village, Road No. 10, Banjara Hills, Hyderabad belonged to one Syed Azam Ali. He sold the said plot to one Abdul Razack on 1.3.1950. In turn, the said Abdul Razack gifted the same to his daughter Niazi Begum. Petitioner and 18 others purchased the said land from Niazi Begum through a sale transaction dated 14.2.1973. They filed suit in O.S. No. 971 of 1985 on the file of the IV Additional Judge, City Civil Court, Hyderabad against Niazi Begum for a declaration of title and the same was decreed on 28.11.1985. While so, one Syed Ibrahim Ali and 21 others filed O.S. No. 45 of 1985 on the file of the IV Additional Judge, City Civil Court, Hyderabad against one PAgamaiah and three others and in the said suit Agamaiah, the 5th respondent herein has filed written statement stating that he purchased the property from Syed Azam Ali in 1975 but however, he had unconditionally accepted the title and ownership of the respondents therein. The said suit was decreed. On the basis of the decree, Syed Ibrahim Ali obtained Orders from the Mandal Revenue Officer for mutation of their names. Questioning the same, Niazi Begum filed an appeal before the Revenue Divisional Officer. In the said proceedings, Agamaiah filed an application for impleading him, but retracted and filed affidavit that he has no right, title and interest in the property. On the basis of the said affidavit of 5th respondent, the Revenue Divisional Officer passed Orders dismissing the impleading petition of the 5th respondent, and ultimately upheld the case of Niazi Begum directing the mutation of her name in the revenue records. As against the Orders of the Revenue Divisional Officer dated 17.12.1988 mutating the name of Niazi Begum, the 5th respondent filed an appeal before the Joint Collector and the said appeal was also dismissed on 22.6.1996. Agamaiah respondent No. 5 filed O.S. No. 2019 of 1991 on the file of the VII Assistant Judge, City Civil Court, Hyderabad against the petitioner and 18 others for permanent injunction in respect of the same land. He also filed an application for temporary injunction which was dismissed on 7.8.1991 holding that he could not show any documents to show his possession. In an appeal filed by respondent No. 5, C.M.A. No. 211 of 1991, dated 11.1.1993 the Order of dismissal was confirmed. Subsequently, the suit was dismissed for default and an application to restore the suit was dismissed for default and application to restore the suit was also dismissed on 18.3.1994. It is further stated that after the land was purchased, the petitioners applied for Layout before the Municipal Corporation of Hyderabad and Layout in respect of the land was also sanctioned in favour of the petitioners and others by the Municipal Corporation of Hyderabad on 4.12.1991. Against the said sanction of lay out, respondent No. 5 filed W.P. No. 10899 of 1992 and the same was dismissed on 27.1.1993. Writ appeal filed in W.A. No. 106 of 1993 was also dismissed on 1.3.1993. Respondent No. 5, however, again got filed O.S. No. 1775 of 1995 on the file of the IV Senior Civil Judge, City Civil Court, Hyderabad through Mallipeddi Narsaiah and others for declaration of title and for permanent injunction in respect of the said land. Respondent No. 5 was figuring as 1st Defendant. Petitioner was shown as 57th Defendant. The said suit was filed alleging that Syed Azam Ali sold the said land to P.Rajaiah, father of Agamaiah the Respondent No. 5 on 12.11.1949 and that Respondent No. 5 and his brother Narsaiah jointly sold Ac.5-25 gts. out of Ac.6-03 gts under Agreement of sale dated 20.1.1972 to plaintiffs 1 to 5 and Defendants No. 7 to 32 therein and delivered the vacant possession. However, another suit in O.S. No. 312 of 1994 was filed by Aziz Begum against agreement holders. The said suit was compromised. In suit O.S. No. 1775 of 1.997, I.A. No. 1935 of 1997 was filed by the Plaintiffs for temporary injunction and the said petition was dismissed on 1.5.1998 holding that the Plaintiffs therein failed to establish their prima facie possession over the land. Questioning the said Order, the Plaintiffs filed C.M.A. No. 1725 of 1998. The same was dismissed by the Division Bench on 2.4.1999. It is further stated that on a interlocutory application filed by the writ petitioners, who are Defendants in suit in I.A. No. 2544 of 1997, and the lower Court granted injunction to the petitioners on 12.8.1999, pending the suit. Against the said Order, the appeal has been preferred by the Plaintiffs in C.M.A. No. 3166 of 1999, which is forming part of this batch of cases.
5. It is submitted that on 22.8.1999, the revenue authorities tried to interfere by encroaching upon the land and therefore, a complaint was filed, and as there was no response, the petitioners filed W.P. No. 19467 of 1999 on 15.9.1999 seeking to interdict the demolition of the structures and also for removing fencing made by the petitioners. The said Writ Petition is also forming part of this batch. However, during the course of arguments on the said petition filed by the petitioners in W.P. No. 19467 of 1999, it was submitted by the learned Government Pleader that the land in question was handed over to Hyderabad Metro Works on 9.9.1999 and G.O. Ms. No. 675, dated 7.9.1999 was passed by the Government stating that the Respondent No. 5 and his brother and associates are entitled for Ac.3-34 gts, out of Ac.6-03 gts. comprising of plot No. 19 and the Government has title only on Ac.2-09 gts. and the petitioners have no title over the land. The said Order passed by the Government assailed in this Writ Petition No. 20282 of 1999.
6. It is stated that the Respondent No. 5 has no manner of right in respect of the land in question inasmuch as in series of litigations before the revenue authorities and the Civil Court he has categorically admitted that he has no claim whatsoever. It is further stated that Agamaiah-Respondent No. 5 filed an application before the Government on 6.5.1993 for no objection certificate, but however, the Government issued memo on 18,2.1999 informing the Respondent No. 5 and his brother that the case was posted on 26.2.1999 in the chambers of the Honourable Minister for Revenue. The petitioners attended along with the advocate and submitted the details of the matter including the pendency of the matter in civil Court in O.S. No. 1775 of 1997. However, the Government passed the impugned Order on 7.9.1999 and the said Order is assailed in this Writ Petition.
7. The Government have filed a detailed counter giving the details as to how the Jubilee Hills Municipality was planned and the plots were allotted to various persons. It is stated that Shaikpet Village was ex-Surfekhas village and after abolition of Surfekhas, it merged in Divani and vested in the Government. During the period of H.E.H. the Nizam, a separate Municipality known as Jubilee Hills Municipality was constituted. In commemoration Silver Jubilee Celebrations with a view to develop the Municipality in the planned city plotting was done in the land of the Government in S.No. 129 making 169 plots in three phases. Elaborate procedure was prescribed for the allotment of the land. However, plot No. 19 measuring Ac.3-34 gts. was allotted to one Rai Eknath Prasad, During Surfekhas regime, the original allottee sold the land in plot No. 19 to Syed Azam Ali and the said Syed Azam Ali filed an application before the Surfekhas authority on 26th Amardad 1356-Fasli along with a copy of the Sale Deed executed by Laxmi Bai, wife of Rai Eknath Prasad for transfer of the property in plot No. 19. After allotment of Surfekhas the erstwhile Jubilee Hills Municipality merged in Hyderabad Municipal Corporation. The Collector thereafter called all the files to defunct Jubilee Hills Municipality and verified the genuineness as different persons are claiming the plots in defunct Jubilee Hills Municipality. After verifying the records while sending the report to the Secretary to Government, the list of persons who have paid the cost of the plots in the said list at Sl.No. 17, the extent of plot No. 12 and 12-A were shown as Ac.6-03 gts. in the name of Smt. Basheerunnisa Begum, Munir Jahan Begum, Noorjahan Begum and at Sl.No. 18, plot No. 19 was mentioned in the name of Syed Azam Ali but in column No. 4 relating to the extent, it was left blank. However, Government by oversight have mechanically adopted the extent of plot No. 12 and 12-A for plot No. 19 as Ac.6-03 gts. instead of Ac.3-34 gts. Therefore, the Government after obtaining the report from the Collector, issued amendment to the Government Memo dated 6.12.1967 correcting as the said extent as Ac.3-34 gts. in G.O. Ms. No. 675, dated 7.9.1999. It is also stated that one Agamaiah, 5th respondent claiming that his father Rajaiah has purchased the petition schedule property from Syed Azam Ali to an extent of Ac.3-34 gts. The said Syed Azam Ali purchased the said land from Laxmi Bai admeasuring Ac.3-34gts. only. Later the 5th respondent filed patta before the Surfekhas authorities to the extent of Ac.3-34 gts. only and hence the claim of Agamaiah was found to be not genuine and created a suspicion. Further, the petitioner and others have claimed the land Ac.6-03gts. under an agreement of sale dated 1.3.1950 from one Niazi Begum, daughter of Abdul Razak, who had entered into an Agreement of Sale with Syed Azam Ali, who is the original owner in 1950. The petitioners and others have compromised with wife of late Syed Azam Ali by receiving a sum of Rs. 7 lakhs from the petitioners. It is also stated that Smt. B. Lohitha and others represented that a supplementary Sethwari be issued to the extent of Ac.3-34gts. and to direct the Survey and Land Records authorities to fix up the boundaries as per survey book and they filed W.P. No. 3103 of 1999 for directing the authorities to issue Supplementary Sethwari in respect of the plot No. 19 having an extent of Ac.3-34gts. This Court disposed of the said Writ Petition with a direction to the Government to take into account the representation and while the matter was receiving the attention, W.P. No. 24661 of 1999 was filed. It is stated that 5th Respondent - Agamaiah, who is one of the claimants of plot No. 19 filed a representation before the Government on 6.5.1993 for mutation of his name in respect of the plot No. 19 measuring Ac.6-03gts. on the ground that the said land was purchased by his father from Syed Azam Ali. Similarly, another set of persons, the petitioner and others have laid a claim for an extent of Ac.3-34gts. in plot No. 19 under Agreement of Sale. The Government after hearing all the parties passed Orders in G.O. Ms. No. 675, the impugned G.O. by amending the area of the plot No. 19 as Ac.3-34gts. and holding that the remaining land was handed over to Sewerage Board on 9.9.1991. Since the land was handed over by the Mandal Revenue Officer to the Sewerage Board, the fencing was done. It is submitted by the Government that the claim of the petitioner is not tenable and the documents were fabricated. The Government tried to justify stating that some old stamps were pressed into service. It is also stated that in respect of the land number of other disputes were pending. It is also stated that one Cooperative House Building Society has filed one land grabbing case against M/s. Godavari Co-operative Housing Society and the matter is pending before the Special Court and therefore, it is stated by the Government that the relief sought for cannot be granted and the parties may be directed to establish their title before the appropriate Court and that this Court cannot adjudicate the dispute of title under Article 226 of Constitution of India. It is, however, reiterated that plot No. 19 of defunct Jubilee Hills Municipality having an extent of Ac.3-34gts. and it was mentioned by the Government as Ac.6-03gts. by inadvertence. Therefore, the Government sought for dismissal of the Writ Petition.
8. The 5th respondent also filed a counter stating that the land in question was sold by Syed Azam Ali to his father late Rajaiah in 1949 and his father was put in possession. The petitioners were never in possession. The petitioners through the connivance of one Koteshwar Rao manipulated all the documents and that the petitioners have no manner of any right in respect of the land in question. He accepts that M. Narsaiah and others filed O.S. No. 1775 of 1994 for declaration of title and for perpetual injunction in which he is a party and the application filed by the Plaintiff was dismissed. So also, the appeal filed was dismissed by this Court. It is the contention of the Respondent No. 5 mat he is in possession and enjoyment of Ac.6-03gts. and the Government have no claim.
9. Aggrieved by the impugned Orders to the extent of not declaring Respondent No. 5 as owner in respect of the balance extent of Ac. 2-09gts. he filed W.P. No. 563 of 2000, which is forming part of this batch matters.
10. The issue that call for consideration is whether the impugned Order in G.O. Ms. No. 675 is sustainable in law?
11. It is not in dispute that the matter relates to the property which was forming part of erstwhile Jubilee Hills Municipality.
12. The learned Senior Counsel Mr. Subba Reddy appearing for the Government submits that the plot No. 19 which is the subject-matter in the present cases was allotted to Eknath Prasad and the extent of the said plot was Ac.3-34gts. But, however, when an enquiry was made with regard to the genuineness of the claimants, a report was sent to the Government about the details of the plot, however in respect of the plot No. 19, the extent was not mentioned, but the extent of plot at Sl.No. 12 and 12-A was Ac.6-03gts. and the said extent was carried forward under a bona fide mistake and that continued to persist even till today till the Order is passed. Therefore, the Government having come to know that the omission had taken place at the Government level, in correctly recording the actual extent of plot No. 19 it was rectified under the impugned Order. Therefore, Government is quite justified and the said Order is quite legal and valid and it is within the competence of the Government.
13. The learned Counsel for the petitioners submit that one Syed Azam Ali purchased the land from the original landowner and who in turn sold to the father of Niazi Begum and subsequently, the father has gifted the property to Niazi Begum, who in turn sold the land to the petitioners under various agreements. It is also stated that the Collector on 14.12.1967 directed Syed Azam Ali, the original owner to be present for demarcation of the plot and the said plot was duly demarcated. The Deputy Director in the memo dated 10.8.1984 also categorically stated that plot No. 19 of Shaikpet Village admeasuring Ac.6-03gts. was wrongly shown as Government land instead of patta land in the town survey records and necessary corrections were carried out in the town survey records. Thus, he submits that it was in 1984, the land was surveyed and to the extent of Ac.6-03gts. was noted as private land and not the Government land. The learned Counsel would also submit that in 1984 Supplementary Sethwari was issued on 19.7.1984 wherein the extent was mentioned as Ac.6-03gts. in respect of the plot No. 19.
14. It is further stated that on an application made for sanction of Layout, the petitioner was requested to demarcate the land and accordingly, it was demarcated and the letter was issued by the Mandal Revenue Officer on 29.4.1999 to the Municipal Commissioner stating that the plot has been inspected by him along with the Mandal Surveyor including the Deputy Commissioner and his staff and it is stated that the land in T.S.No. 1/1/2 Ward No. 10 Block H admeasuring 2H.37A-44 Sq.Mts. (Ac.6-03gts.) situated at Shaikpet Village was a patta land. The Government also issued a memo dated 20.2.1991 confirming that the plot No. 19 of erstwhile Jubilee Hills Municipality measuring Ac.6-03gts. stood recognized in the name of Syed Azam Ali, When Respondent No. 5 filed a petition before the Government for obtaining the sanction of Layout, the Government has rejected the case by memo dated 13.8.1992 stating that the matter related to the dispute about the ownership of the property land and it is purely a matter to be decided by a Civil Court. The learned Counsel also refers to other documents in number of civil litigations in number of cases and submits that the Respondent No. 5 Agamaiah had no manner of right over the property in question and he had categorically accepted before the Civil Courts to the effect that he has no claim whatsoever.
15. The learned senior Counsel for the Government Mr. N. Subba Reddy, however, submits that it is always open for the Government to change the extents of the lands and he refers to the revisional jurisdiction of the Government and submits that it is always open for the Government to pass appropriate Orders in revision. He further submits that a fraud was played by the petitioners stating that the extent of plot No. 19 was Ac.6-03gts, and in fact the extent was only Ac.3-34gts. On account of a bona fide mistake on the part of the Government, the petitioners are trying to encash the mistake of the Government. He submits that when fraud was played, it is always open for the Government to correct at any time and he further submits that when the petitioners were also heard before issuing the impugned Order, they cannot be said to suffer any prejudice.
16. On the other hand, the learned Counsel for the petitioners submit that the very jurisdiction of the Government to entertain the petition regarding the title is wholly without jurisdiction and that it is not open for the Government to decide the dispute relating to title between the Government and the private party unilaterally and no reference or statutory provision is referred to in the impugned Orders and therefore, any Order passed by the Government which conform to the statutory provision is illegal and incompetent. In the absence of any legal support, the Government has no jurisdiction or power to issue the impugned Order. He also submits that even under the revisional power, the same has to be exercised within a reasonable time, but in the instant case, the extent of the plot was confirmed in 1967 to as Ac.6-03gts. and therefore, it is wholly inappropriate on the part of the Government to now contend that the extent was only Ac.3-34gts. and such a mistake cannot be rectified at this distance of time, when the parties acquired the prescriptive right over the property. As noticed earlier any amount of litigation has been created between the parties, but ultimately, presently a suit is pending in the Civil Court and on interlocutory Order passed by the Civil Court, the matter is pending in C.M.A. which is the subject-matter in this batch.
17. The learned Counsel for the petitioners would submit that by virtue of the Orders, the Government have declared the title of the Respondent No. 5 when the matter is sub-judiced before the Civil Court. He also submits that when the Government itself rejected the case of the respondent No. 5, when he sought for mutation of the records on the ground that it is a civil dispute and the Government would not interfere. In such disputes, the parties have to go before the Civil Court to work out their civil rights. In such a situation, it would not be appropriate for the Government to interfere in this matter.
18. As can be seen from the impugned Order, the history has been traced out with regard to plot No. 19 and it is not discernible as to how the matter had landed before the Government. From the references, as can be seen from the G.O. the earliest Order of the Government is 16.12.1967 and thereafter subsequently, the references in the Order only after 1998.
19. The learned senior Counsel appearing for the Government, however, submits that from the details of the allotment made to Eknath Prasad and the Sale Deed executed by the wife of Eknath Prasad in favour of the Syed Azam Ali would clearly indicate that the extent of land was only Ac.3-34gts. or otherwise, the Sale Deed would not have been shown as Ac.3-34gts.
20. But, the question that calls for consideration is whether the Government has jurisdiction to pass the impugned Order?
21. The learned Senior Counsel for the Government, Mr. N. Subba Reddy tried to convince this Court that the Government is vested with the inherent power to correct the omissions or commissions and in the instant case, after hearing the Respondent No. 5 and the petitioners, the records were corrected. Even though no reference is made in the Order relating to Section 166-B of A.P.(Telangana Area) Land Revenue Act, 1317 Fasli, but, yet, mere non-mention of a provision would not invalidate the action taken by the Government. Section 166-B of the said Act reads thus:
"Revision :--(1) Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358F, the Government or any Revenue Officer not lower in rank to a Collector or the Settlement Commissioner of Land Records may call for the record of a case or proceedings from a subordinate department and inspect it in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and may make suitable order in that behalf:
Provided that no order or decision affecting the rights of the ryot shall be modified or annulled unless the concerned parties are summoned and heard.
(2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings for a subordinate department and satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of Sub-section (1).
(3) The original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision."
22. It has been held by the Supreme Court in catena of decisions that powers of revision though no limitation has been prescribed, yet, it has to be exercised within a reasonable time, it would not be open for the Government to alter the extent and unsettle the settled position after a period of nearly 32 years, when the nature of the property has been changed and the third party rights have been crystallized. In any event, the Government could not pass the impugned Order and purported exercise of powers under Section 166-B at the instance of the Respondent No. 5. As can be seen from various references referred to above, Respondent No. 5 has been changing his stand from time to time. He had given a statement before the revenue authorities that he has no interest in the said land and even in the Civil Court he has filed an application in one of the suits that he does not claim any right over the property. The Order as such does not show that the revision has been entertained by the Government, the entire Order only speaks that Agamaiah appears to have filed an application before the Government for no objection certificate and an application cannot be treated as a revision. It is open for the Government either to reject or consider the application in accordance with law, but it is not open for the Government to follow the procedure unknown to law. The very application for seeking no objection certificate by the Respondent No. 5 was not maintainable under any provisions of the Act. The contention advanced by the learned Counsel for the Government that the power is traceable to Section 166-B is absolutely misconceived. There is no whisper in the impugned G.O. to that effect nor the counter filed in such an elaborate manner contained such a plea. It only appears to be a ruse to wriggle out of inextricable situation. As already noticed, when a Layout has approved, 5th respondent challenged the same, but without any success. In number of civil cases, he has also conceded that he has no interest in the land in question. Under these circumstances, it is inappropriate on the part of the Government to have divided the property and apportioned the same conferring the title on the Respondent No. 5 in respect of the Ac.3-34gts. and the balance Ac.2-09 gts. to the Government. The Government is entitled to pass appropriate Orders in accordance with law. Therefore, any Order passed without reference to the statutory provision is illegal and incompetent. Moreover, in this case the Government have categorically stated in the counter that the title of the parties cannot be decided by the Government and that they should approach the appropriate forum for relief. Government also stated that there are number of civil disputes between the petitioners and 5th respondent and others, in respect of the plot No. 19. Strangely the Government decides the title in respect of plot No. 19 in favour of Agamaiah, 5th respondent over an extent for Ac.3-34gts, rejecting the title of petitioners. Further, it declared its own title in respect of Ac.2-09 gts. Such a course of action is highly arbitrary and without jurisdiction. It is also to be noted that already a suit for title in respect of the land is pending before the Civil Court and me Respondent No. 5 is a party to the suit.
23. For the aforesaid reasons, we are of the view that the impugned Order suffers from total lack of jurisdiction and the same is liable to be set aside.
24. Accordingly, W.P. No. 20282 of 1999 is allowed, the impugned Orders are set aside.
25. In view of this, no Orders are necessary in W.P. No. 19467 of 1999 and accordingly it is closed.
26. The Writ Petition No. 563 of 2000 filed by the Respondent No. 5 in W.P. No. 20282 of 1999, consequently is liable to be dismissed and accordingly, it is dismissed.
27. The CMA has been filed by the Appellants-Plaintiffs challenging the Order of temporary injunction passed in favour of the Defendants at their instance. It is also to be noted that a similar application for injunction was filed by the plaintiffs and the same was dismissed and against which an appeal was filed and the said appeal was also dismissed by the Division Bench. In view of this position, the injunction Order having been granted by the Civil Court dated 12.8.1999 we are not inclined to interfere at this juncture.
28. Under those circumstances, it is desirable that the suit itself has to be disposed of one way or the other. Accordingly, the CMA No. 3166 of 1999 is disposed of directing the lower Court to dispose of the O.S. No. I775 of 1997 within a period of four months from the date of receipt of a copy of this Order.
29. Application has been filed to implead the petitioners as party respondents in W.P. No. 20282 of 1999 and other Writ Petitions. Inasmuch as the Writ Petition has been allowed and the claim for title is pending before the Civil Court in which the implead petitioners are parties, it is open for them to agitate their respective rights in the civil suit and they cannot be impleaded as party respondents in the Writ Petition. Hence, W.P.M.P. No. 30598 of 2002, 30599 of 2002 and 30854 of 2002 are dismissed.