Andhra HC (Pre-Telangana)
Raidurg Co-Operative House Building ... vs Government Of A.P. And Anr. on 21 March, 2003
Equivalent citations: 2003(3)ALD2, 2004(3)ALT221
ORDER V.V.S. Rao, J.
Introduction
1. The core question in all the five writ petitions is whether the Government of Andhra Pradesh, the first respondent herein, committed any error apparent on the face of the record in passing the orders in Memo No. 39408/SS.1/1994-42, dated 13-11-2001 justifying the prayer made in the writ petition to declare the same as illegal, unauthorized, against the principles of natural justice and void. All the writ petitions were heard together and are being disposed of by this common order. Shorn of the details, by the impugned order, the Government has concluded that the land admeasuring Acs. 279.22 gts. comprised in Sy.No. 66 of Raidurg Village in Ranga Reddy District is Government land and, therefore, there is no need to order implementation of supplementary Sethwars (See Glossary of Revenue terms in the footnote*), which are incorrect and unwarranted. It is a decision not to implement the supplementary Sethwars and nothing else. Why then, the petitioners are aggrieved? They allege that by reason of alleged agreement of sale or tenancy, or by reason of alleged long standing occupation, they have ownership rights in the land and the non-implementation of Sethwars might affect their claim that they are owners having title to the land.
Background facts/allegations WP No. 5177 of 2002
2. The petitioner is a society registered in 1972 under the provisions of A.P. Cooperative Societies Act, 1964, having membership of 293 persons. In 1981, the society entered into agreement of sale with the owner for an extent of Acs. 29.00 in Sy.No.66/3 of Raidurg Noukhalsa Village. It claims to have prepared a layout dividing the land into 280 plots of 300 Sq.yds. each. As the land is covered by the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act), they applied for exemption. They also claim that the Special Officer passed orders under Section 8(4) of the ULC Act recommending to the Government for giving exemption. The members of the petitioner society appeared to have purchased the plots and got them registered in their names from the land owners and protected tenants Jointly. After the formation of Serilingampally Municipality in 1987, the members were granted permission to construct buildings and the Municipality, it is alleged, provided B.T. roads, street lights and water tap connections. Be that as it is, when the layout was submitted to the Municipality, by resolution dated 31-1-1991 the Municipality requested the Hyderabad Urban Development Authority (HUDA) to regularise the layout sanctioned by the Raidurg Gram Panchayat in 1973. The layout was forwarded to the HUDA for regularisation. The Government by G.O. Ms. No. 367, Municipal Administration Department, dated 12-7-1989 authorised HUDA to take necessary action for regularisation of the layout pending change of land use. As no action was taken by HUDA, the society filed WP No. 8858 of 1999 seeking a direction to give effect to the letter of the Government dated 6-2-1999 whereby the Government requested HUDA to take necessary action subject to certain conditions.
3. The Revenue records in the year 1954-55 till 1996, it is alleged, show the vendors of the petitioner society as pattadars of the land. They also filed necessary declaration under the ULC Act and order under Section 9 thereof was also issued. The R.D.O., Chevella, by letter dated 30-11-1985 addressed the Assistant Director, Survey and Land Records, Ranga Reddy District, stating that the land of the vendors of the petitioner society was identified and on the basis of the records the petitioner society can be said to have pattedar rights.
4. It is also stated in the affidavit that ignoring the Revenue records, the Joint Collector issued a notice on 21-6-1999 calling upon the petitioners to explain as to why the land in Sy. No. 66/3 should not be declared as Government land. As the petitioners and their vendors perfected their title under the law of prescription, the Joint Collector could not have issued such a notice. The land owners filed WP No. 28619 of 1999 before this Court seeking quashing of the said notice. This Court disposed of the writ petition giving liberty to the land owners to make a representation before the District Collector and to participate in the proceedings. It is alleged that in spite of representation made along with necessary documents, the Joint Collector passed orders on 21-6-1999 declaring the land as Government land. The petitioners filed WP No. 17411 of 1999 questioning the orders of the Joint Collector and the said writ petition was allowed.
5. The impugned order is challenged on very limited grounds as found from paragraph 18 of the affidavit accompanying the writ petition which reads as under:
It is respectfully submitted that since the impugned orders were passed without making the petitioner as party and without any notice to the petitioner and their vendors and since they are the affected and aggrieved parties and since their rights are being taken away in the land they are filing this writ petition to establish their rights. The impugned orders passed by the first respondent Government are highly illegal, arbitrary and without any authority besides being mala fide, and as such violative of Article 14 of the Constitution of India. Under the circumstances, there is no other alternative, effective and adequate remedy except to approach this Honourable Court invoking the special original jurisdiction under Article 226 of the Constitution of India.
Be it noted that in the earlier round of litigation, the petitioner society filed W.P. No. 17411 of 1999 challenging the orders of the Joint Collector dated 21-6-1999 cancelling the patta (more about this infra). The said writ petition was disposed of by a learned Single Judge of this Court following the judgment in W.P. No. 22516 of 1999, dated 5-6-2000.WP No. 5181 of 2002
6. The five petitioners in this case are respondents 15 to 19 before the Joint Collector in the case under Section 166-B of the Telangana Revenue Act and petitioners in W.P. No. 17425 of 1999. In brief their case is that all of them purchased an extent of Acs. 25.00; (Acs. 5.00 each) in Sy. No. 66/2 of Raidurg Noukhalsa Village out of the total extent of Acs. 45.00 under different registered sale deeds from the sons and legal heirs of pattadar Chandni Begum. They allege that M.R.O., granted pattadar certificates under the ROR Act and that in the pahanis for the years 1992 and 1993, the names of the petitioners were entered in the column dealing with possession. It is also stated that in 1990 a supplementary Sethwer was issued to an extent of Acs. 45.00 in Sy. No. 66/2 of Raidurg Noukhalsa Village and a tonch plan was also prepared and furnished by Survey and Land Records Department, Ranga Reddy District. All other averments and allegations in the affidavit accompanying the writ petition are on similar lines as in the other cases and hence it is not necessary to repeat the same.
WP No. 5182 of 20027. One Shamlet Yellaiah was respondent No. 3 before the Joint Collector in the proceedings under Section 166-B of the Telangana Revenue Act. The petitioners in this writ petition are the legal representatives of Shamlet Yellaiah. It is their case that their ancestors were in possession of an extent of Acs. 25.00 in Sy. No. 66/3 of village Raidurg Panmaqta since long. In the khasra pahanis for the year 1951-55, the names of the petitioners' ancestors were shown. The land was known as Madigi Gutta. In the year 1966, when third parties tried to encroach the land, a suit being O.S. No. 68 of 1966 was filed on the file of the Court of the District Munsif, Hyderabad. The said Court granted injunction in favour of the plaintiffs and petitioners and their ancestors have been in possession of the same. The petitioners submitted a layout plan for the said land to the Gram Panchayat by paying layout charges of Rs. 20,000/-. The layout was sanctioned on 20-11-1986 after formation of Serilingampally Municipality and it was forwarded to the HUDA for regularisation. However, as per the zonal development plan notified in G.O. Ms. No. 479, Municipal Administration Department, dated 2-9-1994, the land use was changed to public and semi-public use and, therefore, construction of houses has been stopped. In view of the development of layout, the Vice-Chairman, HUDA requested the Government to change the land use. The Government authorised HUDA to take necessary action to regularise the layout and action is pending.
WP No. 7418 of 20028. The seven petitioners filed the writ petition making the following allegations. Sonabai was owner and pattadar of the land admeasuring Acs. 15.00 in Sy. No. 66/2 of Raidurg Panmaqta Village. Sonabai died in September, 1978. During her lifetime, she executed a Will dated 25-11-1976 bequeathing the said property in favour of her four sons namely, G. Ramachander Rao, G. Hanumantha Rao, G. Nagabhushan Rao and G. Krishna Murthy. They became joint owners and pattedars, each having Acs. 3.30 gts. Petitioners 1, 2, 5 and 6 purchased Ac. 1.05 gts. out of Acs. 3.30 gts. from G. Krishna Murthy during his lifetime under five registered sale deeds registered during 1981-85. Subsequently, petitioners 1, 3, 4 and 7 also purchased the land from other sons of Sonabai under registered sale deeds. The land admeasuring Acs. 4.10 gts. is allegedly in possession of the petitioners and the M.R.O., Serilingampally issued a certificate under the ROR Act and tonch plan has been prepared. The Revenue records earlier to 1952 show the land as patta land of late Sonabai.
9. The petitioners constructed poultry farm, three sheds, servant quarters and dug a bore well. They have been paying municipal tax to the Municipality. The Joint Collector issued notice under Section 9 of the ROR Act and some persons filed writ petitions. Without considering the evidence placed by the petitioners, the Joint Collector gave a decision that the land is Government poramboke. The petitioners filed W.P. No.17430 of 1999. The same was allowed on 30-10-2000 following another judgment in W.P. No. 22516 of 1999.
10. The Government passed orders on 30-11-2001 behind the back of the petitioners without any notice and without affording any opportunity of being heard. The Government without following the procedure declared the land as Government land. The Government also directed the District Collector, Ranga Reddy District to take necessary action in the matter. The petitioners apprehend that the District Collector might take coercive steps to dispossess them from the land. Therefore, they filed the writ petition.
WP No. 8452 of 200211. The petitioner is son of G. Hanumantha Rao, who had earlier filed W.P. No. 17428 of 1999 challenging the orders of the Joint Collector, dated 21-6-1999. It is alleged by him that his grandmother Sonabai was the pattadar of the land in Sy. No. 66/3 admeasuring Acs. 29.30 gts. situated at village Raidurg Noukhalsa and the land in Sy. No. 66/2 admeasuring Acs. 15.00 in village Raidurg Panmaqta. The other averments and allegations need not be referred to as they are on same lines as in the other writ petitions.
Government's case as pleaded in counter-affidavits
12. The first respondent i.e., the Government of Andhra Pradesh filed separate counter-affidavits in all the writ petitions. While tracing the earlier events leading to passing of the impugned order on 13-11-2001, the Government denied all the averments in the writ petitions. The allegation that all the petitioners have been in possession of the land has been also specifically denied. It is stated that all the material and evidence placed by the petitioners in support of their case for implementation of supplementary Sethwars has been considered and an order was passed. It is not an ex parte decision. It is further contended that as there is a serious question of title of the petitioners the remedy under Article 226 of the Constitution is not proper and the Civil Court alone is competent to decide the issue of title. In the additional counter-affidavit filed in WP No. 7418 of 2002, while denying the claim of the petitioners and reiterating that Raidurg Village was escheated to the Government and that the petitioners filed the writ petitions with unfounded apprehensions that the Government would resort to coercive steps for evicting them, the District Collector deposed as under:
In regard to para 13 the averment that the Collector, Ranga Reddy District is taking steps to dispossess the petitioner from the residential buildings, servant quarters, sheds etc., is baseless. As already submitted most of the area is in the possession of the Government. It is a vacant land, full of rocks and mushrooms. The petitioners appear to have built a house. No effort is being made to dislodge them from any illegal process. Indeed, due to the status quo order no proceedings have been commenced to evict the petitioners. His contention merely being voiced mala fide to secure interim orders. As already submitted this Court has clearly indicated that the petitioner should take appropriate proceedings to secure their own legal rights such as they might be. I state that the Government has no intention for adopting any measures de hors the procedures laid down by law to secure possession of any lands or houses which are in the actual possession of the petitioners. It may be noted that the survey number in question is a vast extent and the petitioners only claim to be in possession of some small extents, even that assertion is not correct.
Submissions made on behalf of the petitioners
13. Sri N. Narsing Rao, learned Counsel for the petitioners in WP Nos. 5177, 5181, 5182 and 8452 of 2002 made the following submissions. The writ petition is not one seeking declaration of title of the petitioners. By reason of the Revenue records, the correspondence among the Revenue officials and the correspondence between the Revenue Officials/Government and statutory authorities like HUDA, title of the petitioners over the land cannot be doubted and, therefore, the writ petitions are maintainable. When the petitioners or their predecessors are in possession of the land for several decades the Revenue authorities cannot invoke the jurisdiction under Section 166-B of the Telangana Revenue Act and declare title of the Government. The petitioners or their predecessors are in possession since long time and when the Government claims right and title, they cannot resort to passing an executive order setting up title in themselves and/or resort to action for evicting the petitioners under the provisions of the A.P. Land Encroachment Act, 1905. The petitioners have perfected their title by adverse possession and, therefore, the Government cannot resort to evict them by following the provisions of the Land Encroachment Act. The Government has to seek proper declaratory relief in a Civil Court. He placed reliance on the decision of the Supreme Court in Govt. of A.P. v. T.Krishna Rao, , and two decisions of this Court in Shivalingappa v. State of A.P., 1988 (1) ALT 716, and Special Deputy Collector v. Konda Lakshman Bapuji, 1984 (1) APLJ219 (DB). He contends that the impugned order is illegal and improper, for on the principle or res judicata the Government is not entitled to declare their title. In support of this, the learned Counsel placed reliance on the judgment of this Court in W.P. No. 22516 of 1999 dated 5-6-2000 wherein the orders of the Joint Collector were challenged. The Government passed orders without issuing any notice and, therefore, the same is unsustainable.
Sri E. Ayyapu Reddy, learned Counsel appearing for the petitioners in W.P. No. 7418 of 2002, submits that the Government misdirected itself in thinking that the petitioners are alienees of Chandni Begum and that the impugned order is vitiated by non-compliance of the principles of natural justice. He also submits that in the guise of the impugned order, the District Collector and his subordinate officials are threatening to dispossess the petitioners from the land forcibly and the same cannot be permitted.
Submission of the respondents
14. Sri T. Anantha Babu, learned Advocate-General for the State of Andhra Pradesh, submits that when the petitioners and various other persons made a representation to the Government to implement the supplementary Sethwars issued in 1954 and 1958, the Government has conducted a detailed enquiry and considered voluminous records of more than fifty years. The Government also considered all the documents submitted by the petitioners and rejected the claim for implementation of supplementary Sethwars. The petitioners had ample opportunity and all of them gave representation to the Government. The decision taken by the Government and communicated by the impugned order is not an ex parte decision nor does it violate principles of natural justice.
15. The learned Advocate-General further submits that in respect of the Government poramboke land, a Sethwar or a supplementary Sethwar need not be implemented. In the context, the Government observed that it is a Government land and the same does not in any manner bind the petitioners. If the petitioners feel that they are bound or that they are divested of their alleged right and title, they have to seek appropriate relief from the Civil Court and a writ petition for declaration of title is not maintainable. Even this Court in W.P. No. 22516 of 1999 observed that setting aside the order of the Joint Collector does not amount to declaring possession or divesting possession on anybody and whoever seeks such declaration must approach the Civil Court. The learned Advocate-General placed reliance on various decisions of the Supreme Court in Jai Singh v. Union of India, , Parvatibai Subhanrao Nalawada v. Anwarali Hasanali Makani, , State of Rajasthan v. Bhawani Singh, , Balkrishan v. Satyaprakash, (2001) 2 SCC 498, and Konda Lakshmana Bapuji v. Govt. of Andhra Pradesh, . Elaborate submissions were also made pointing out the infirmities and illegalities committed by the Patwari and the Secretary of jagirdar in making incorrect entries showing Raidurg as two villages though there was no such bifurcation. He also pointed out that patta granted to Chandni Begum was already cancelled and she challenged the same before this Court unsuccessfully in WP No. 165 of 1957.
Points for consideration
16. Background facts and rival submissions, give rise for these points for consideration-
(1) Whether the impugned order is illegal and unsustainable for want of issue of notice to the petitioners by the Government?
(2) Whether the impugned order of the Government amounts to adjudication of title of the Government as well as the petitioners?
(3) Whether the order of this Court in W.P. No. 22516 of 1999 dated 5-6-2000 operates as res judicata including the Government to pass the impugned order? and (4) Whether the second respondent namely, the District Collector, Hyderabad, can evict the petitioners, if they are in possession as alleged, de hors the provisions of law?
In Re Point No. 1 Principles of natural justice
17. The A.P. (Telangana Area) Land Revenue Act, 1317 F. ('Telangana Revenue Act' for brevity) deals with various aspects of land administration including land revenue. Section 24 of the Act declares that all lands, rivers, streets, bunds and roads etc., together with appurtenant structures thereof are the property of the Government except the land belonging to persons legally capable of holding the property and to the extent the rights are established. The land in respect of which any order is given under any law ceases to be Government land. It is within the power of the District Collector to dispose of the Government land in his discretion without divesting the right of title vested in any person or public. All lands whether applied to agriculture or any other purpose and wherever situated shall be liable to payment of land revenue to the Government in accordance with the provisions contained in Chapters IV, VII and IX of the Telangana Revenue Act (See Section 48).
18. If any person desirous of taking unoccupied land has to submit a petition to the Tahsildar and obtain permission. Under Section 57 of the Act, if any person unlawfully occupies any khalsa (Government land) and uses the land without any title shall pay the Government the land revenue for the entire period of unlawful occupation. It shall be lawful to the District Collector to summarily evict any person having unlawful occupation and attach the crop raised on such land. Similarly, if any building is constructed on the land unlawfully occupied, the Collector shall have power to summarily demolish the building and evict the person after giving reasonable opportunity of giving cause. Section 58 lays down that occupancy rights (under Section 54 read with Section 57) are heritable and not transferable. That is to say, a person who has been given permission by the Tahsildar to occupy the land and who is paying land revenue for such occupation, cannot transfer his right without prior permission of the Collector under Section 58-A of the Act, but such right is heritable.
19. Chapter VII of the Telangana Revenue Act contains provisions for settlement and assessment area. The revenue survey is to be ordered by the Government for the purpose of settlement and assessment (See Section 77). Under Section 78, the Survey Officer is required to give a general notice to all landholders to appear before him with necessary documents. Under Section 86, the Survey Officer shall prepare a separate register for each village showing the area and assessment of each number showing the name of the pattadar in the register. The Settlement Officer is also empowered under Section 87 to correct clerical errors or mistakes. After preparation of settlement records, the same are made over to the District Collector, who, under Section 88, is required to cause village records to be prepared. Section 89-A deals with division of survey numbers into new survey numbers in the event of any portion of cultivable land is permitted to be used for non-agricultural purposes. The settlement record prepared by the Survey and Settlement Officer under Sections 86 and 87 and made over to the District Collector (under Section 88) contains the details of cultivable or arable land belonging to a village. (The same is colloquial termed as Sethwar). When once Sethwar is prepared showing the land in a village which is cultivable, it is for the District Collector to cause the village records prepared in accordance with the same. As noticed, if there are any mistakes or clerical errors, the Settlement Officer can make necessary correction and issue supplementary record or Sethwar for the land which is arable.
20. Raidurg which is a jagir village was surveyed in the year 1317-F (1907 A.D.) and settlement of the village was made in 1321-F. (1911 A.D.) and the village maps were printed in 1323-F (1913 A.D.) presumably in accordance with Sections 87 and 88 of the Telangana Revenue Act. The file produced before the Court contains a report submitted by the District Collector. It shows that as per original survey and settlement records, Sy. No. 66 admeasuring Acs. 279.22 gts. was classified as Government poramboke land. That means that the land was not arable and there was no question of the District Collector making village records showing the occupants of the land. Be that as it is, law requires the Survey Officer to issue a general notice requiring attendance of all landholders and all persons interested in such land in person or through an authorised agent before preparing settlement record. It is nobody's case that at the time of survey and preparation of settlement records in 1911 A.D. such procedure was not followed. At the time of implementation of Sethwar or preparation of settlement record by the District Collector who is required to cause village records prepared, the law does not require any notice. Even where survey numbers are sub-divided, no notice is contemplated under law.
21. The case of the petitioners is that in 1954, supplementary Sethwar was prepared for Sy. Nos. 17, 19 and 66/2 in favour of Chandni Begum and in 1958, another supplementary Sethwar was prepared in respect of Acs. 122.22 gts. of land of Raidurg Village in Sy. Nos. 66/1, 66/3 to 66/13 in favour of Chandni Begum. These supplementary Sethwars were not implemented. It is also their case that the Patwari entered the name of his mother Sonabai. According to the petitioners, Chandni Begum was granted patta to an extent of Acs. 15.30 gts.in Raidurg Noukhalsa Village and Acs. 15.00 of Raidurg Panmaqtha Village. The case of the Government, on the other hand, is that after the death of Dilwarbee, jagirdar of Raidurg, Chandni Begum's efforts to get succession failed and her patta itself was cancelled by the Revenue Minister, that the Patwari was not competent to bifurcate Raidurg Village and show his mother Sonabai as pattadar in two villages.
22. The petitioners have been contending that supplementary Sethwars were not implemented though they were validly prepared in favour of Chandni Begum and Sonabai. When this Court decided W.P. No. 22516 of 1999, it was brought to the notice of this Court that they made a representation to the Government to implement supplementary Sethwars, in vain. Therefore, this Court observed that the Government may take appropriate decision on the application filed by the petitioners for implementation of supplementary Sethwars. When a person approaches for implementation of Sethwar or supplementary Sethwar, no notice is required if the competent authority decides to implement it or not to implement it. The Government decided not to implement supplementary Sethwars for the reason that they were incorrect and brought into existence contrary to the settlement records prepared during 1907 to 1913 A.D. Further, as rightly contended by the learned Advocate-General, the decision of the Government not to implement supplementary Sethwars is altogether different from the right claimed by the petitioners that they are absolute owners of the land. In the record produced before this Court, the Government considered all the representations and all the documents produced by various persons seeking implementation of supplementary Sethwars. Therefore, the submission that due to non-issuance of notice, the impugned order is vitiated cannot be accepted.
In Re Point No. 2 Declaration of title?
23. During the reign of Nizam, Paigah nobles who were closely related to the Nizam were granted jagirs liberally. Abdul Khair Khan, a Paigah noble was granted jagir. After his death, his son Abdul Fateh Khan and his grandson Fakhruddin Khan were granted jagirs at different stages through various sanads, parwanas. After the death of Nawab Fakhruddin Khan, the entire jagir and estate was partitioned and three separate units came into existence. These were Asman Jahi Paigah, Khurshid Jahi Paigah and Vicarel Umara Paigah. Nawab Moinuddowlah Bahadur got Asman Jahi in the partition. After his death, by a parwana No. FM. D. 2nd/Ramzan, 1360 Hizri, Nawab Zahir Yar Jung was appointed as Amir Paigah Asman Jahi. In the year 1948 jagirs were abolished by Jagir Abolition Act, 1358 F. (1948 A.D.).
24. After abolition of the jagirs, all the waste, unarable and community (porambokes) vested in the Government. The Jagir Abolition Act provided for payment of compensation to the jagirdars as determined by the Court of Nizam-e-Atiyat, which was constituted under an enactment. Along with other Paigah nobles, Nawab Zahir Yar Jung, who was jagirdar of Asman Jahi Paigah submitted a claim petition on 11-9-1959 claiming compensation for 377 villages.
25. Nizam-e-Atiyat, Hyderabad took up the inam enquiry and its Assistant Nizam Atiyat issued a notification inviting objections to the claim made by Nawab Zahir Yar Jung. The said notification was published in the A.P. Gazette No.29, dated 28-7-1960. In Appendix A of the relevant notification produced before this Court, at page Nos. 1134 to 1137, Raidurg Village is mentioned at Sl. No. 312. In Case No.1/56/1959, after conducting enquiry, the Court of Nizam-e-Atiyat pronounced orders on 28-10-1968 in relation to the villages which were in possession of Paigah Asman Jahi, and in relation to other grantees, showing different villages in different categories. Insofar as the villages which were not found to be in possession of Paigah, at the time of abolition of jagir, the Court of Nizam-e-Atiyat ordered that these villages be escheated to the Government. These villages are included in Appendix B of the order. Raidurg Jagir Village is mentioned at Sl. No. 89. Apart from this, land admeasuring Acs. 279.22 gts. in Sy. No. 66 of Raidurg Jagir village was shown as Government poramboke in survey and settlement records. The land is described as rocky in nature not fit for cultivation. The Government claims to be absolutely in possession of the property. The Jagir village of Raidurg was surveyed in 1317 F. (1907 A.D.) and settlement of the village was made in the year 1321 F. (1911 A.D.). As per the records, Sy. Nos. l to 109 formed Raidurg Jagir admeasuring Acs. 1163.11 gts. Sy. Nos. l to 49 admeasuring Acs. 212.11 gts. were included in Raidurg Paigah and Sy.Nos.l to 16 admeasuring Acs.22.14 gts, were in Raidurg Khalsa. The land in Sy. No. 66 was classified as Poramboke Sarkari.
26. In respect of Raidurg Jagir, Smt. Dilwarbee was the Jagirdar (probably sub-grantee). Even while the Jagirdar was alive, the Secretary issued orders for grant of patta in the name of his wife Smt. Chandni Begum and directed the Patwari of Raidurg Jagir to deliver possession and make entries accordingly in the Jamabandi record for the year 1345 F. (1935 A.D.), Smt. Dilwarbee died issueless in 1938. Smt. Chandni Begum, alleging that she is adopted daughter, applied to the Deputy Commissioner (Inam Subha Bidar Sharief) for grant of succession of the mash (inam or grant) held by late Dilwarbee. The application for succession was rejected by the Deputy Commissioner on the ground that no proper evidence was produced with regard to her relationship to the Jagirdar. The entire mash or Jagir of Dilwarbee and her husband Noorul Aziz was declared as Khalsa on 8-6-1942. Chandni Begum filed an appeal before the Court of Nizam-e-Atiyat. Pending the appeal, the inam held by her was taken over under the Government supervision in 1350 F. Aggrieved by this, she filed another appeal before Nizam-e-Atiyat. By its judgment No. 65/87 made in 1354 F., Nizam-e-Atiyat rejected both the appeals of Chandni Begum. She again filed another appeal before the Government, which referred the matter to Nizam-e-Atiyat for detailed enquiry. After enquiry, the Nizam-e-Atiyat circulated a file to Nizam recommending approval of the succession. Nizam, however, did not take any final decision.
27. When the appeals of Chandni Begum to get a succession certificate to the mash were pending before various authorities, it appears that Patwari without any authority allegedly created two new village records namely Raidurg Panmaqtha and Raidurg Nou-Khalsa in the place of Raidurg Jagir. As noticed, there were 109 survey numbers in Raidurg Jagir. The land in dispute in Sy. No. 66 along with others was included in Raidurg Panmaqtha as well as Raidurg Noukhalsa. As per the Sethwar and settlement records of Raidurg Jagir, Sy. No. 66 admeasuring Acs. 279.22 gts. is recorded as Government poramboke. In spite of this, Patwari split Sy. No. 66 into two parts: an extent of Acs. 129.30 gts. was entered in the records of Raidurg Noukhalsa and the balance Acs. 149.32 gts. was included in Raidurg Panmaqtha. The land admeasuring Acs. 149.32 gts. was again subdivided in the names of those two persons without any orders of the competent authority. Acs. 100.00 (Sy. No. 66/1) was recorded in the name of Chandni Begum and Acs.29.30 gts. was recorded in the name of G. Sonabai, who is none other than Patwari's mother. Chandni Begum was also brought on record as pattadar in respect of Sy. No. 66 of Raidurg Noukhalsa Village without any valid order.
28. Some of the villagers of Raidurg made a representation to the District Collector (Awal Taluqdar) for cancellation of patta in favour of Chandni Begum, By an order dated 2-2-1358 F. Awal Taluqdar rejected the application and directed the subordinate officials to implement the patta granted by the Secretary of jagirdar. An appeal was preferred to the Board of Revenue by the villagers, which by an order dated 29-6-1950 upheld the orders of the Awal Taluqdar and patta in favour of Chandni Begum. The villagers carried the matter by way of appeal to the Deputy Chief Minister (Revenue Minister), who by an order dated 31-7-1956 passed orders of cancellation of patta to Chandni Begum and all entries in the Revenue records. Chandni Begum filed a writ petition before this Court challenging the orders of the Revenue Minister. The result of W.P. No. l66 of 1956 filed by Chandni Begum is not known, for the record of the said case is not traceable in the Registry of this Court. The fact remains that the patta as granted by the Secretary to the Jagirdar in favour of Chandni Begum was cancelled even by July, 1956.
29. As per the orders of the Revenue Minister dated 31-7-1956 in Case No. 126, the entries in the Revenue records showing Chandni Begum as pattadar ought to have been deleted, but they were not deleted. Therefore, the District Collector, Hyderabad, by order dated 11-12-1958, suspended the Patwari of Raidurg Village. In the meanwhile, ignoring the orders of the Revenue Minister, a supplementary Sethwar was got prepared in the year 1954 for Sy. Nos. 17, 19 and 66/2 in favour of Chandni Begum. The same was, however, not implemented. Again in the year 1958, another supplementary Sethwar was got prepared in favour of Chandni Begum by the Land Records Branch in respect of Acs. 122.22 gts. in Sy.Nos. 66/1, 66/3 to 66/13 of Raidurg Village and the same was not implemented.
30. Chandni Begum died in 1981 leaving behind four sons, namely, Habeeb Sadiq, Habeed Alvi, Habeeb Mohammed. Habeeb Ahmed who died sometime before 1997. Be that as it is, the GPA holders of these persons submitted a petition to the District Collector, Ranga Reddy District on 15-11-1993 and another petition to the Revenue Minister on 29-11-1993 requesting implementation of supplementary Sethwar in respect of the land in Sy. Nos. 66/1, 66/3 to 66/13 of Raidurg Panmaqta Village.
31. The matter was referred to the Mandal Revenue Officer, Serilingampally and the Revenue Divisional Officer, Chevella. They reported that the land in Sy. No. 66/1 admeasuring Acs. 109.32 gts. is shown as Government land in the Revenue records, that certain extents of land was already alienated in favour of Cement Research Institute, Weaker Section Housing Colony and Indian Council of Social Welfare leaving a balance of Acs.74.32 gts. and that the entire land in Sy. No. 66 of Raidurg Village is a vast extent of Government land. They also reported that supplementary Sethwar issued by the then Assistant Director in the year 1958 in respect of the land in Sy. No. 66/1 and 66/3 to 66/13 admeasuring Acs, 122.02 gts. in favour of Chandni Begum was not implemented due to rival claims. A few other persons also filed similar applications for implementation of Sethwars alleging that they are protected tenants on the land. Number of other representations were made to other officials including the Hon'ble Chief Minister and it is not necessary to refer to the same.
32. After obtaining report from the M.R.O., the Joint Collector, Ranga Reddy District, issued notices on 20-8-1998 purporting to be under Section 166-B of the Telangana Revenue Act read with Section 9 of the A.P. Record of Rights in Land and Pattadar Passbooks Act, 1971 ('the ROR Act' for brevity). In the notices it was mentioned that the then Patwari made wrong entries in the relevant Revenue records showing the land as patta land which is a Government land. Challenging the same, Bandaru Narayana Swamy and others (petitioners in W.P. No. 5188 of 2002) and G. Hanumantha Rao (father of petitioner in W.P. No. 8452 of 2002) and Shamlet Narasimha and four others filed writ petitions before this Court. This Court by orders passed on various dates directed the District Collector, Ranga Reddy District, to consider the objection petition filed by all of them pursuant to the show-cause notice dated 20-8-1998 and pass appropriate orders.
33. The Joint Collector declared that the land in Sy. No. 66 admeasuring Acs. 149.32 gts. situated at Raidurg Panmaqta Village and Sy. No. 66 admeasuring Acs. 129.30 gts. situated at Raidurg Noukhalsa Village are poramboke sarkari lands as per the survey and settlement records and that nobody has any right and title to the same. Aggrieved by the orders of the Joint Collector, the legal representatives of Chandini Begum filed W.P. No. 22516 of 1999. Similarly, other persons before the Joint Collector filed separate writ petitions being W.P. Nos. 17411, 17425, 17427, 17428 and 17430 of 1999 seeking a writ of certiorari to quash the orders of the Joint Collector dated 21-6-1999 purported to have been passed under Section 166-B of the Telangana Revenue Act and Section 9 of the ROR Act.
34. Hon'ble Sri Justice B. Sudershan Reddy considered W.P. No. 22516 of 1999 and by an elaborate order dated 5-6-2000 allowed the writ petition holding that the order of the Joint Collector suffers from incurable legal infirmity and jurisdictional error. The other writ petitions filed by others including the petitioners in W.P. No. 5177 of 2002 were allowed by another learned Judge, Hon'ble Sri Justice G. Bikshapathy following the judgment in W.P. No. 22516 of 1999. It is necessary to refer to the judgment of Hon'ble Sri Justice B. Sudershan Reddy in some detail at appropriate stage. Suffice to mention here that the learned Judge having noticed that the question relating to implementation of supplementary Sethwar issued in the year 1954 is under consideration by the Government of Andhra Pradesh, observed that it is for the Government to take appropriate decision in the matter. The Government filed writ appeals against the orders of the learned Single Judge. All the writ appeals being W.A. Nos. 1588, 1760, 1761 of 2000 and 18, 68 and 91 of 2001 were disposed of as unnecessary by an order dated 8-3-2002.
35. After the decision of the learned Single Judge in W.P. No. 22516 of 1999, the Government considered the representations of various claimants including the legal representatives of Chandni Begum for implementation of supplementary Sethwars and passed orders on 13-11-2001.
36. In the impugned order, the Government concluded that (i) as per the settlement record of Raidurg Village for the year 1323 F. (1913 A.D.), the land in Sy. No.66 admeasuring Acs. 279.22 gts. is poramboke sarkari (Government land); (ii) after abolition of the jagir, the Government issued G.O. Ms. No. 1106, Revenue Department, dated 6-6-1959 to conduct enquiry into the properties held by Khursheed Jahi Paigah and Asam Jahi Paigah under Atiyat Enquiry Act; (iii) the Nizam-e-Atiyat conducted enquiry and by its order dated 28-10-1968 declared Raidurg Village as one of several villages escheated to the Government; (iv) after 1968, Chandni Begum could not claim any rights in any of the villages forming part of Raidurg and the Government never gave any patta assigning any numbers. As per Circular No.22/1321 F. under the authority of Nizam, no Government land could have been assigned without any survey numbers; (v) the sub-division numbers for Sy. No. 66 were assigned without valid assignment and without prior permission of the Government and all the entries made by the Patwari in the Revenue records are not genuine. It is not competent for the Patwari or the Jagirdar to create Revenue Villages and prepare settlement records which can only be done under the orders of the Government There is no bifurcation of Raidurg Village into two villages by the Government; (vi) the Patwari without any valid orders from the competent authority recorded the name of Chandni Begum in respect of an extent of Acs. 45.00 in Raidurg Noukhalsa Village and the name of the Patwari's mother, G. Sonabai for an extent of Acs. 29.30 gts, in Raidurg Noukhalsa and Acs. 15.00 in Raidurg Panmaqtha Village; (vii) after the death of Jagirdar, Dilwarbee, Chandni Begum sought succession and the same was dismissed by the concerned Deputy Commissioner. The same was ultimately referred to Nizam-e-Atiyat who submitted to the Nizam recommending for grant of succession, but no final decision was taken by the Nizam till the merger of jagirs into Diwani in 1358 F.; (viii) on a representation made to the Revenue Minister, the patta granted to Chandni Begum was cancelled and she challenged the same in W.P. No. 166 of 1957 and no orders are produced before the Government as to the result of the said writ petition; (ix) Chandni Begum filed a suit for declaration of title and possession and ultimately filed Second Appeal No. 469/4 of 1354 F. unsuccessfully; (x) though Chandni Begum died in 1981, her legal representatives did not file any appeal, but only sought implementation of supplementary Sethwars; (xi) the land in Sy.No. 66 is a Government land and there is no necessity for implementation of supplementary Sethwars which are incorrect and unwarranted.
37. The learned Advocate-General for the State contends that the decision of the Government does not amount to adjudicating title. He submits that the land in question is a Government poramboke land and for that reason the Government decided not to implement supplementary Sethwars, When the land is Government land and there are encroachers or occupants claiming the same land, the Government has an option to evict the encroachers and unauthorised occupants. By merely deciding not to implement supplementary Sethwars, the Government, in any manner, has not determined the alleged title of the petitioners. If the petitioners are aggrieved by the finding that it is a Government land and still they claim title by reason of adverse possession, protected tenancy etc., the petitioners' remedy is before a Civil Court to file a suit for a declaration. In support of this plea, he relies on the observations made by this Court in the judgment in W.P. No. 22516 of 1999.
38. It is axiomatic that while exercising the power of judicial review under Article 226 of the Constitution, this Court would not decide disputed questions of title (See State of Rajasthan v. Bhawani Singh (supra), Mohan Pandey v. Usha Rani Rajgaria, , and Parvatibai Subhanrao Nalawada v. Anwarali Hasanali Makani (supra). Whether or not a person has title to the land? Whether or not the Jagirdar validly granted patta in favour of Chandni Begum? and whether or not the persons have been in possession of the land, are disputed questions of fact. When the Government contends that the land in question is rocky terrain and not fit for cultivation and has been continuously in possession of the land, is it permissible for this Court to go into the question of title?
Though the learned Counsel for the petitioners contends that the petitioners are not seeking declaration of title, in my considered opinion, while praying for a writ of certiorari to quash the impugned order, they are, in effect, seeking for declaration of title. The effect of quashing the orders would be setting at naught the observation of the Government that the land in question is Government poramboke land as per survey and settlement records.
39. In Parvatibai v. Anwarali Hasanali (supra), the Supreme Court observed as under:
................. Before closing this judgment we would, like to emphasise that in cases relating to immovable properties which are governed by the ordinary civil law the High Court should not exercise its special jurisdiction under the Constitution unless the circumstances are exceptional. This aspect has been discussed by this Court earlier on several occasions.
40. In State of Rajasthan v. Bhawani Singh (supra), the Supreme Court again observed thus:
Having heard the Counsel for the parties, we are of the opinion that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition.
41. The question of adverse possession cannot be gone into in these proceedings. A person who sets up adverse possession is required to prove the factum that his possession has been open and hostile and adverse to the title of the real owner and seek a declaration from a Civil Court. In a writ petition, such declaration cannot be given. To prove acts of possession and show that prima facie petitioners have title, reliance is placed on the letter dated 30-11-1985 addressed by the R.D.O., Chevella to the Assistant Director, Survey and Land Records, Ranga Reddy District. In the said letter the R.D.O. requested the Assistant Director to take up sub-division work of Sy. No. 66 of Raidurg Panmaqtha Village and also Raidurg Noukhalsa Village to avoid confusion. It reveals that the R.D.O. refers to a report of the Tahsildar in which it is stated that in 1954, Sy. No. 66 of Raidurg Noukhalsa village was divided into two bits; one bit of Acs. 100,00 was shown to be in occupation of Chandni Begum and another extent of Acs. 29.30 gts. was shown to be in the name of Sonabai, that in 1954, the land in Sy. No. 66/1 was further divided and sanctioned by the Nizami Jamabandi and pote numbers were carried out in the village records. As per the report of the Tahsildar though pattas were given in Sy. No. 66/1, on the spot, there is no clear identification of the land as no coding was done in the village map. The land is identified only with the name of the field by the villagers. Reliance is placed on this communication by Sri Narsing Rao, learned Counsel to show that in the Revenue records, the names of Chandni Begum as well as Sonabai were shown as landholders. I am afraid, I cannot agree with the same. As per the Telangana Revenue Act, the survey and settlement record is to be prepared in the first instance, based on which village records are prepared leading to preparation of Sethwar showing actual cultivable/arable land which is recorded in favour of an occupant. Even according to the letter of the R.D.O., dated 30-11-1985, Sethwar for Sy. Nos. 66/1, 66/2 and 66/3 was never implemented and it was not possible to identify the land on the spot.
42. Learned Counsel also placed reliance on a communication from the Principal Secretary to the Government in Municipal Administration Department to the Vice-Chairman, HUDA, dated 6-2-1999.
This letter refers to a letter of the HUDA dated 6-11-1996 wherein it was stated that the land admeasuring Acs. 29.00 in Sy.No. 66/ 3 is abutting 60 ft. wide B.T. road connecting Old Bombay Road and Khajaguda Village road, that the site is developed with WBM roads and provided with street lighting and that twenty houses have already come up. Having regard to this, the Government authorised HUDA to take action to regularise the layout pending change of land use subject to certain conditions. It is not denied before me that even as on today, HUDA has not regularised the layout and a writ petition was already filed before this Court challenging such action. These two documents would show that a layout was prepared for Sy. No. 66/3. This does not, in any manner, belie the contention of the Government that the land in Sy. No. 66 is Government poramboke land and that Raidurg jagir village was never bifurcated.
43. In my considered opinion, these two letters do not confer any title on the petitioners or others who purchased property from them. This Court has referred to the above letters to show that the petitioners' title prima facie is not established except to some extent showing that some houses have come up in the land. The petitioners have not placed any material before this Court in support of various allegations made in the affidavits accompanying the writ petitions. I may, however, hasten to add that considering the material relied on by the learned Counsel, this Court cannot adjudicate any title and these prima facie observations are made with regard to yet another submission made by the learned Counsel that long standing occupation of the petitioners would disable the Government to resort to summary proceedings for eviction.
44. In Govt. of A.P. v. T. Krishna Rao (supra), it was laid down that where there is genuine dispute of title, the Government cannot resort to summary eviction under the A.P. Land Encroachment Act, 1905. The question of title in such cases must be decided in a properly constituted suit. It was held:
The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary enquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit.
45. In Special Deputy Collector v. K.L. Bapuji (supra), a Division Bench of this Court observed:
........... The occupation of the property by the writ petitioners being open and for an appreciable length of time as observed by the Supreme Court 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. Since there is a bona fide dispute of title between the Government and the writ petitioners it must be adjudicated upon by the ordinary Courts of Law. The Government cannot decide such questions unilaterally in its own favour and evict them summarily on the basis of such decision..............
46. A learned Single Judge of this Court in Shivalingappa v. State of A.P. (supra), considered the decisions of the Supreme Court in Govt. of A.P. v. T. Krishna Rao (supra) and another decision of this Court in Special Deputy Collector v. K.L. Bapuji (supra) and observed that these two decisions do not lay down any general law that whenever the persons sought to be evicted from the land claim their possession to be not unauthorised, the Government should be compelled to go to a Civil Court. It was also observed that when there is evidence that Government is in possession of the land, the Court must not conclude that the petitioner raised a bonafide claim about the possession.
47. I have referred to the above three decisions only because Sri Narsing Rao contends that by reason of the impugned order the authorities are visiting the land and threatening to dispossess summarily and that having regard to the ratio of the Supreme Court in Govt. of A.P. v. T. Krishna Rao (supra), the Government has to contest the title in a Civil Court and they cannot resort to summary eviction. As rightly contended by the learned Advocate General, the State has an option to avail any of the remedies available under law including the Land Encroachment Act. When the land was surveyed as Government poramboke land and Revenue records show as such, the petitioners cannot allege long standing occupation when pattas given to Chandni Begum and Sonabai are not genuine and incorrect. Merely placing reliance on some communications among various officials, it cannot be said that there is a bonafide and genuine dispute of title. In a given case even if there is evidence of showing the possession of a person, it cannot be said that there is bonafide dispute. Long standing possession is one of the factors and the same cannot be the only factor to compel the Government to go and avail remedy of civil suit. It must be remembered that by a catena of decisions it is well settled that only entries in the Revenue records do not confer any title. Nonetheless, if revenue survey is conducted as required under law and in accordance with the provisions, Sethwar can itself be evidence of title. I may refer to a Division Bench judgment of this Court in Union of India v. Vasavi Co-operative Housing Society Ltd., (DB). The Division Bench, after referring to various precedents, summarised in paragraphs 56 and 96 as under:
It is thus clear that the pattadar means a person, who possess a title to the land. Whether he is in possession of the land or not is responsible for the Government for payment of land revenue. Pattadar is one whose title to the land has been recognised. The statute recognises the pattadar as a person possessing a title to the land......... A careful analysis of the decisions referred to hereinabove of this Court as well as of the Apex Court would make it clear that the entries made in the record of rights carry with them a very great evidentiary value, provided the record of rights is prepared and maintained under the provisions of the relevant statutes or the regulations, as the case may be, and further provided that the entries therein are made after holding public enquiries. Sometimes, they constitute the only evidence available in order to establish one's title to the lands. The entries made in Columns 1 to 19 of the pahani patrikas shall be deemed to be the record of rights prepared and maintained by a public servant in discharge of his official duties.
48. In none of the cases before me the petitioners have produced any Revenue records nor it is their case that after the alleged bifurcation of Raidurg jagir village into Raidurg Noukhalsa and Raidurg Panmaqtha, the competent authority entered the petitioners' names in the relevant columns of pahanis and that they or their predecessors paid land revenue to the Government. In this background, whether the Government should be compelled to file a civil suit or take such necessary action as is required and permissible, cannot be a subject-matter of mandamus. When the Government had choice and options under law, it is for the Government to choose one such option for protecting their land in public interest having regard to constraints of time, litigation expenditure and the nature of evidence the Government have with them. Point No.2 is answered accordingly.
In Re Point No. 3 Question of Res judicata
49. The learned Counsel for the petitioners contends that the judgment of this Court in WP No. 22516 of 1999, dated 5-6-2000 operates as res judicata and, therefore, the finding recorded by the Government that the land in question is a Government poramboke land is unsustainable. This submission is devoid of merit. Firstly, this Court, in W.P. No. 22516 of 1999, did not declare the title of the petitioners herein, much less anybody. Secondly, this Court made it very clear that the effect of allowing the said writ petition is not declaring the title of anybody. I will deal with these two aspects in some detail.
50. The doctrine of res judicata is based on nemo debet bis vexari pro una et eadem causa, interest repitblicae ut sit finis litium and res judicata pro veritate occipitur. These doctrines are based on public policy that no man should be vexed twice for the same cause (first maxim); that it is in the interest of the State that there should be an end to the litigation (second maxim); and the judicial decision must be accepted as correct (third maxim). The doctrine applies to all judicial proceedings whether civil or criminal. In the field of public law, it is well settled that the doctrine applies to the proceedings under Article 32 or Article 226 of the Constitution.
51. In Satyadhyan v. Smt.Deorajin Debi, , the Supreme Court held that the general principle of res judicata applies even to writ petitions filed under Article 32 of the Constitution. In Dayarao v. State of U.P., , the Supreme Court considered the question of applicability to writ proceedings and held thus:
............. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts' of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
The Supreme Court further observed:
..................There can be little doubt that the jurisdiction of this Court to entertain applications under Article 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under Article 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedu re prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.
52. In Amalgamated Coalfields v. Janapada Sabha, , the Supreme Court laid down that in the writ petition filed by a person before the High Court is considered and dismissed, the decision thus pronounced would continue to bind the parties unless the decision is modified or reversed in appeal. Relevant observations are as follows:
..............Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in Courts of law.
53. As noticed, the sons and/or other legal heirs had filed W.P. No. 22516 of 1999 questioning the orders of the Joint Collector dated 21-6-1999 cancelling the patta given to Chandni Begum. The petitioners in all the writ petitions also filed various writ petitions challenging the same order of the Joint Collector. His Lordship Sri Justice B. Sudershan Reddy considered W.P. No. 22516 of 1999 elaborately and delivered the judgment on 5-6-2000. When other matters were listed for hearing before His Lordship Sri Justice G. Bikshapathy, following the judgment in W.P. No. 22516 of 1999, those writ petitions were also allowed. Therefore, it is necessary to consider the question whether the judgment in W.P. No. 22516 of 1999 precludes the Government from passing the impugned order?
54. By order dated 21-6-1999, the Joint Collector, purporting to exercise powers under Section 166-B of the Telangana Revenue Act, set aside the patta granted to Chandni Begum holding that the Jagirdar could not have granted patta to Chandni Begum. The Joint Collector recorded three conclusions; (i) that the legal heirs of Chandni Begum failed to produce the conclusive evidence regarding the manner in which Chandni Begum became landowner of Sy. No. 66 of Raidurg Village and that the extracts of Sethwar and other related documents show that the land is Government land; (ii) that the other respondents/ claimants are relying on Revenue entries which were made in a fraudulent manner which require rectification; and (iii) that mere Revenue entries made in the records do not confer any valid title and the claim for title has to be substantiated by valid documents like patta certificate and other relevant documents.
55. The learned Judge considered the jurisdiction of the Joint Collector under Section 166-B of the Telangana Revenue Act and held that the notice issued to all the persons interested suffers from fundamental legal errors. After referring to State of Gujarat v. P. Raghav, , Kodanda Rao v. Govt. of A.P., 1981 (2) ALT 280 (DB), Mirza Muzamdar Hussaih v. D. Bhaskara Reddy, 1987 (2) ALT 383 (DB), I.T. Vyavasaya Coolie Sangam v. K.S. Reddy, 1996 (2) ALD 945 (DB) and Commissioner of Survey, Settlements and Land Records v. G. Padmavathi, 1994 (4) ALD 61 (DB), the learned Judge concluded that the exercise of suo motu revisional powers by the Joint Collector after a long lapse of time is not valid, that it is not permissible for the Joint Collector to exercise the revisional powers in relation to an order passed by the Collector (Awal Taluqdar) and that the allegations of fraud and misrepresentation are unsustainable insofar as Chandni Begum is concerned.
56. The learned Judge also concluded that the Joint Collector could not have exercised power under Section 9 of the ROR Act after a long lapse of time. A submission was made on behalf of the petitioners (legal heirs of Chandni Begum) that the petitioners therein are entitled for implementation of supplementary Sethwars at least to an extent of Acs. 47.02 gts. This was rejected observing:
......... In my considered opinion, the submissions made by the learned Counsel for the petitioners as well as the learned Government Pleader in this regard are totally misconceived. This Court, in the instant case is not concerned with any question as to what is the extent of the land to which the petitioners are entitled to retain as owners thereof. This Court cannot grant any such declaration. This Court is merely consumed with legality of the order passed by the Joint Collector, which is impugned in this writ petition. Nothing more.
57. The learned Judge, while observing that it is for the Government to take appropriate decision on the question of implementation of supplementary Sethwar issued in 1954 so as to enable the legal representatives of Chandni Begum to claim an extent of Acs. 47.02 gts. in Sy. No. 66/I, made it clear that this Court is not deciding title or setting aside the title of anybody. The following observations are apt:
This order setting aside the impugned order passed by the Joint Collector shall not confer any additional right, title or interest upon any extent of land which may not be in possession of the petitioners herein, nor this order can take away the existing right, title or interest of the petitioners and others in whatever extent of the land that may be available on ground. This order has nothing to do with (he extent of the land, which is already stated to be alienated by the Government. It is for the petitioners to work out their remedies elsewhere,
58. This Court in W.P. No. 22516 of 1999 has not decided the title of private persons or title of the Government. The Court considered only the legality of the orders passed by the Joint Collector and set aside the same on the grounds noticed hereinabove. Indeed, liberty was given to the Government to pass appropriate orders on the question of implementation of supplementary Sethwars while observing that the Court order setting aside the order of the Joint Collector shall not confer any additional title, title or interest upon any extent of land which may not be in possession of the petitioners and that the order does not amount to taking away any existing rights. Liberty was given to the petitioners also to work out their remedies elsewhere. Therefore, the conclusion is irresistible that all those who were claiming title in relation to the land in Sy. No. 66, which is recorded in the settlement record as Government land, have to seek appropriate remedies before the Civil Court. Hence, on Point No. 3 it is held submission that the impugned order is barred by res judicata is wholly misconceived.
In Re Pont No. 459. The sovereign has absolute right over soil. A person who occupies the land and whose occupation is regularised by grant of a necessary patta gets a right to cultivate the land subject to payment of land revenue. Even after giving grant to the occupier, the sovereign is not divested of the entire right to the property/land. The right of an assignee or an occupier can always be brought to an end by the sovereign by exercising the power of eminent domain. Whenever the land is not under the direct control or management of the sovereign, the sovereign has a right to demand revenue in the shape of produce from the land. However, so far as waste lands, rivers, streets, pathway and other common lands, the right vests in the sovereign. This right is even recognised by enacting law.
60. As already pointed out, Section 24 of the Telangana Revenue Act lays down that all public roads, lanes, paths, bridges, ditches, dikes, rivers, streams, tanks, ponds, canals, lakes and flowing water and all lands are property of the Government excepting the land belonging to a person to the extent his rights are established. A reference may also be made to Section 2 of the A.P. Land Encroachment Act, 1905, which extends to the State of Andhra Pradesh. According to the said provision, all lands, wherever situated and all public roads, streets, lanes and paths, bridges, ditches, dikes and fences, bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks, flowing water etc., are property of the Government. Section 3 of the Estates Abolition Act also declares that after abolition of the estates, all lands, the sub-soil, water belong to the Government and the Government may dispose of the property in accordance with law laid down therein. Unless and until the title to the property is established by reason of a grant by the Government or assignment by the Government, the law presumes all waste lands, forests etc., belong to the Government and nobody has right to encroach upon the same. Indeed, encroaching upon Government land and grabbing or attempting to encroach or attempting to grab is made an offence by the State enactment under A.P. Land Grabbing (Prohibition) Act, 1982 (See Konda Lakshamana Bapuji v. Govt. of Andhra Pradesh, ). It was laid down therein that even an attempt to grab the land is attracted by the provisions of the Land Grabbing Act.
61. The law also recognises that a person who alleges to be in possession of the Government land and who allegedly put the land to use either for agricultural purpose or non-agricultural purpose, cannot be affected without considering his claim to the land, by reason of the long settled principle in Indian law that the first occupant of the land gets a right to claim the land. Indeed, under the A.P. Land Encroachment Act, the competent authority can evict persons whose occupation is objectionable and if the occupation is unobjectionable as per the relevant Government policy, the same can be regularised. Umpteen times, the Government came forward for regularising the objectionable as well as unobjectionable occupations or encroachments after collecting certain amount as consideration. These factors are being pointed out to show that summary eviction by coercive steps is not authorised by law. I may, however, hasten to add that what action is to be taken by the District Collector or the Government cannot be decided by this Court. As rightly pointed out by the learned Advocate-General, the Government has option and it is the best Judge to decide as to what necessary action is required for protecting the valuable Government land.
62. The petitioners' claim that they have been in occupation since long by reason of pattas or by reason of agreements of sale and therefore, it is not a Government land requiring implementation of supplementary Sethwars, was rejected by the Government. The reason for rejecting the representation for implementation of supplementary Sethwars is that the patta claimed is incorrect and supplementary Sethwars are incorrect and not according to law. In such a case, it is for the petitioners to prove their title to the land in view of the earlier settlement record showing the land in question as Government land. It does not, however, mean that the Collector can evict the petitioners without issuing any notice and without due process of law. It is for the District Collector or other competent authority either to follow such method as is best suited in public interest. In this connection, an additional counter-affidavit filed by the District Collector in WP No. 7418 of 2002 may be referred to wherein it is stated that no effort is being made to dislodge the petitioners from the land in question illegally and that the Government has no intention for adopting any measures de hors the procedure laid down by law to secure possession of any lands or houses which are in the actual possession of the petitioners. It is for the Government to take appropriate decision in the matter in accordance with law. There is no presumption in law that the Government would not adhere to law. The point is answered accordingly.
63. In the result, for the above reasons, I hold that the impugned order does not suffer from any infirmity or illegality requiring interference in exercise of power under Article 226 of the Constitution of India. The observations made during the course of the judgment would sufficiently safeguard the interests of those persons who are allegedly in possession of part of the land.
64. The Writ Petitions, subject to the above observations, are dismissed. There shall be no order as to costs.