Telangana High Court
District Collector,Hyd,And 3 vs Syed Jahangir,R.R.Dist,And 2 on 7 July, 2023
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
+ WRIT APPEAL No.484 of 2017
% Date: 07.07.2023
# The District Collector, Hyderabad,
Hyderabad District and others.
... Appellants
v.
$ Syed Jahangir,
And others.
... Respondents
! Counsel for the appellants : Mr. Parsa Ananta Nageswara Rao
Learned Government Pleader attached to the office of learned Advocate General
^ Counsel for the respondents : Mr. P.Sri Raghuram
Learned Senior Counsel representing learned counsel Mr. A.Prabhakar Rao
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. 2005 (3) ALD 105 (DB)
2. (2004) 3 SCC 553
3. (2013) 4 SCC 280
4. (1995) 1 SCC 47
5. (2007) 8 SCC 705
6. (2007) 8 SCC 748
7. AIR 2006 SC 1350
8. (2001) 6 SCC 496
9. (2019) 4 SCC 500
10. (2011) 11 SCC 396
11. (2010) 5 SCC 203
12. (1992) 4 SCC 61
13. (2003) 6 SCC 230
2
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.484 of 2017
JUDGMENT:(Per the Hon'ble Sri Justice C.V.Bhaskar Reddy) Heard Mr. Parsa Ananta Nageswara Rao, learned Government Pleader attached to the office of learned Advocate General for the appellants and Mr. P. Sri Raghuram, learned Senior Counsel representing Mr. A.Prabhakar Rao, learned counsel for the petitioners.
2. This writ appeal is directed against the order of the learned Single Judge in W.P.No.26405 of 2012, dated 17.08.2016.
3. Appellants are the respondents in the writ petition. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the writ petition.
4. Learned Single Judge allowed W.P.No.26405 of 2012 directing the respondents not to interfere with the possession of the petitioners in respect of the land 3 admeasuring 988.49 square metres, 983.70 square metres, 1025.98 square metres covered by Survey No.563/1 situated at Bagh Amberpet, Hyderabad (hereinafter referred to as, the subject land). It was further directed that if the respondents intended the said land to be used as a water body for the benefit of local people to perform Bathukamma festival, they shall acquire the same by paying compensation under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (briefly, 'the Land Acquisition Act' hereinafter).
5. The brief facts necessary for disposal of the writ appeal are stated as under:
5.1. Petitioners had filed the writ petition alleging that that one Syed Aziz had acquired an extent of Acs.299.11 guntas at Bagh Amberpet, Hyderabad, under registered sale deed bearing document No.49/1946 from late Pingili Venkata Rami Reddy and others. The said Syed Aziz died in 1960 leaving behind his wife - Smt. Fatima Begum, five sons and three daughters. It was the further claim of the 4 petitioners that their mother along with other legal heirs of Syed Aziz filed a declaration under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (briefly, 'the ULC Act' hereinafter). The said declaration was computed and the draft statement was issued under Section 8(4) of the said Act on 26.05.1980 followed by orders under Section 9 of the Act on 12.06.2003 determining the family members of Syed Aziz holding land in excess of permissible limit admeasuring 86,422 square metres and further a notice under Section 10(5) of the Act was issued on 05.02.2004. It was the further case of the petitioners that aggrieved by the notice under Section 10(5) of the Act, their predecessors-in-title filed a writ petition, vide W.P.No.3499 of 2004, and this court had granted status quo on the subject land of the writ petition.
5.2. The State Government had adopted the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (briefly, 'the Repeal Act' hereinafter) on 27.03.2008 and by virtue of the Repeal Act, all the cases in which possession was not taken and where proceedings did not culminate in action under 5 Section 10(6) of the ULC Act had abated. Therefore, petitioners claim that they are absolute owners of the subject land in Survey No.563/1. Subsequently, the said W.P.No.3499 of 2004 was dismissed as infructuous on 09.07.2012. It was the further case of the petitioners that they made an application under G.O.Ms.Nos.455 and 456 dated 29.07.2022 seeking regularisation of the subject land in File No.H2/456/08 and 17/06 dated 24.03.2011. They had also filed an application seeking regularisation of the said land under G.O.Ms.No.902 dated 31.12.2007 and by proceedings dated 29.06.2011 the Commissioner regularized the land to an extent of 1025.98 square metres in Survey No.563/1 in favour of petitioner No.3 by collecting an amount of Rs.45,70,072.00. Petitioners No.1 and 2 also applied for regularisation of their respective extents under the said Government Order, pursuant to which they were issued intimation letter dated 04.04.2010 asking them to pay an amount of Rs.1,04,53,440.00. The contention of the petitioners was that since the Government issued GO referred to above for regularisation of the land and intimation letters had been issued to them, 6 it had to be presumed that the petitioners were in physical possession of the subject land and they were entitled for regularisation and the State Government or its authorities were not entitled to interfere with their possession.
5.3. Respondent No.1 - District Collector, Hyderabad, had filed a detailed counter affidavit stating that the lands claimed by the petitioners fall in T.S.No.70/2, 71/1, Block-
A, Ward No.163 of Amberpet Village of Amberpet Mandal and in the Town Survey Land Records (TSLR), it is recorded as "Syed Azam" in column No.10 and column No.20. As per Kandem Land Register (in column No.23) which is meant for describing the field status, it is mentioned as "Bathukammacheruvu" (water body). In the counter affidavit, it was asserted that the subject land forms part of the old water body located in Survey No.563/1 of Amberpet Mandal irrespective of its classification in the records; that the local residents demanded protection of the said water body from encroachments; and that the water body was being utilized by the residents of surrounding colonies every year to celebrate Bathukamma festival. It was 7 further stated in the counter affidavit that G.O.Ms.No.605 dated 15.06.2009 and the proceedings of the Commissioner, Greater Hyderabad Municipal Corporation (GHMC) dated 29.06.2011 were issued without properly verifying the basic facts, nature, classification and extent of subject land and as such, the said proceedings had not conferred any right on the petitioners. Proposals were sent to the Government to cancel the aforesaid Government Order as the said Government Order would come in the way of protecting the water body. It was alleged that respondents in coordination with GHMC were taking steps to protect Bathukammacheruvu (water body) for the last several years. Under the proceedings dated 16.10.2012, GHMC had informed that the subject land which is in Survey No.563/1 was earmarked as water body and requested to take action for its protection. Further, it was stated in the counter affidavit that the Government with a laudable object to protect the water bodies had introduced a programme called "Neeru - Meeru Programme" and issued G.O.Ms.No.120, Irrigation and Command Area Development (CAD) Department dated 02.12.2010 8 transferring all water bodies from the control of Irrigation and CAD department to Municipal Administration and Urban Development Department. The land in Survey No.563/1 is a low lying area and during rainy season it gets filled with water. Respondent No.1 had denied the possession of the petitioners over the subject land. It was specifically asserted in the counter affidavit that even the map prepared by Survey of India had confirmed the existence of water body. The Hyderabad Metropolitan Development Authority (HMDA) also addressed a letter dated 17.09.2012 for change of land use from residential use zone to conservational use zone in the master plan prepared by HMDA. Petitioners were making efforts to change the nature of the land by dumping bricks and waste material. Noticing the same, respondents prevented the encroachment of the petitioners and to resist the action of the respondents, petitioners had filed the writ petition.
6. Respondent No.3 also filed a counter affidavit stating that petitioners were not in physical possession and enjoyment of the subject land. As per pahani, the said 9 land was classified as "Errakunta Patta" which is popularly known as "Bathukamma Kunta". As per the orders of this court in W.P.No.7043 of 2011 dated 18.03.2011, all kuntas are water bodies which cannot be altered and put for residential use. It was further stated that as per the pahani for the year 1962, the land bearing Survey No.563/1 admeasuring an extent of Acs.9.19 guntas is recorded as "Errakunta" water body and that Survey No.563/1 is correlated to T.S.No.71/1 and 70/2, Block-A, Ward No.163 of Amberpet Village; that T.S.No.71/1 is recorded in the name of Syed Azam; and as per TSLR, in column No.10 it is recorded as patta land of total extent of 24,532 square metres. Further, Plot Nos.1 and 2 to an extent of 1025.98 square metres in Survey No. 563/1 were regularized contrary to the stand taken in W.P.No.12358 of 2003 filed by Syed Azam wherein the Commissioner had stated that the land in Survey No.563/1 was a tank land. The notice under Section 23 of the Andhra Pradesh Water, Land and Trees Act, 2002, was issued to Syed Azam on 12.01.2005 when he had made efforts to change the nature of the land/water body. Questioning the said notice, Syed 10 Azam filed W.P.No.3499 of 2004 and this court had granted status quo orders in W.P.M.P.No.4601 of 2004 and as such, further action could not be taken by the respondents. It is further stated that the petitioners were not in possession at any point of time. As such, there is no question of interference over their possession by the respondents. Third respondent categorically denied the possession of the petitioners stating that the possession is with GHMC and encircled with the compound wall and the same is maintained by GHMC.
7. Fourth respondent has filed a counter affidavit stating that the writ petition is not maintainable as the relief sought is in declaratory nature and without seeking consequential relief, the petitioners cannot succeed and the writ court is not having any jurisdiction to decide the title and possession of the petitioners and the petitioners have to approach the competent forum to establish their title and possession and there are serious disputed questions raised, the same cannot be adjudicated under Article 226 of the Constitution of India. Further, the fourth respondent 11 also reiterated the contentions of respondent Nos.1 and 2 with regard to the nature of land, its classification and boundaries and extent of the survey number; proceedings for regularisation; tanks being transferred to the control of HMDA under 'Neeru Meeru Programme' and denied the title and possession of the petitioners over the subject land. Fourth respondent further stated that in the notified Zonal Development Plan, the land in survey No.563/1 was earmarked for allotment as park and construction of building is not permissible in tank/kuntas in the Zoning Regulations.
8. Petitioners also filed a reply affidavit to the counter affidavits filed by the respondents reiterating their stand that they are the absolute owners and they have been in possession of the property and the respondent authorities without having any authority, right or title are interfering with the possession of the petitioners over the subject land.
9. The learned Single Judge has made the following points for consideration:
12
(a) Whether the prayer in the Writ Petition is defective and should petitioners be denied relief on that ground?
(b) How is the nature, title and possession of the land in Sy.No.563/1 described in the pahanis and Sethwar prepared by the Revenue authorities?
(c) Whether the description of land in Sy.No.563/1 as "Errakunta patta" can be construed to mean that the said land contains a tank/water body?
(d) To what Town Survey Numbers is land in Sy.No.563/1 of Amberpet village correlated in the Town Survey Land Records?
(e) Whether Syed Azam and his family members including petitioners' mother filed declarations under the Urban Land Ceiling and Regulation Act, 1976 in respect of land in Sy.No.563/1?
(f) Whether the Special Officer and Competent authority under the said Act took actual physical possession of the land in Sy.No.563/1 from Syed Azam and his family members or not?
(g) Did the respondents acquire possession of land in Sy.No.563/1 by any valid and legal means to enable them to handover the same to the Greater Hyderabad Municipal Corporation?
(h) If the land in Sy.No.563/1 is private land, even if there is a water body in it, would it, on that count, become Government land and can the petitioners' possession be interfered with by respondents?
(i) What is the effect of Section 24 of the A.P. (Telangana Area) Land Revenue Act, 1317 fasli?
(j) What is the effect of dismissal of W.P.No.18235 of 2012 filed by petitioners on 26-06-2015? and 13
(k) To what relief?
10. The learned Single Judge upon considering the above points came to a conclusion that the subject land is a private land and as such, granted a declaratory relief and allowed the writ petition.
11. The appeal has been filed mainly on the ground that the relief sought in the writ petition is declaration of the action of the respondents in trying to interfere with the possession of the petitioners as illegal without seeking and establishing title and possession in their favour and also without seeking any consequential relief as such, the writ petition is not maintainable. It is further challenged on the ground that the subject land admeasuring Acs.5.31 guntas in survey No.563/1 in Amberpet village and mandal is classified as Errakunta (water body) and is commonly known as 'Bathukammakunta' as per the revenue records and as such the constructions are not permitted in the said land.
14
12. It is the further case of the appellants that under Section 24 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli (Land Revenue Act, for short), all the tanks/kuntas are properties of the Government and that the petitioners have not produced any title deeds to establish their right or title over the subject land. It is further case of the appellants that the subject land is with possession of the GHMC and as such the question of interference does not arise. The other ground raised by the appellants is that there are 399 tanks and water bodies falling within the jurisdiction of erstwhile Hyderabad Urban Development Authority and the Government issued G.O.Ms.No.120 dated 02.12.2010 transferring all the water bodies from Irrigation Department to Municipal Administration and Urban Development Department wherein the said tank claimed by the petitioners as a private land is shown at serial No.1. Appellants also raised the ground that in respect of the very same property in Survey No.563/1, Syed Azam filed W.P.No.12358 of 2003 claiming that he is in possession of the scheduled property and seeking a direction similar to the present writ petition 15 stating that he is in possession of land admeasuring Acs.7.15 guntas in Survey No.563/1 of Amberpet Village and Mandal and in the said writ petition a counter affidavit was filed by the Municipal Corporation wherein a specific stand was taken that the subject land is a water body. Appellants further urged that the petitioners also filed W.P.No.18235 of 2012 to declare the action of the respondents therein in not providing protection to them over the possession of the respective lands in Survey No.563/1 of Bagh Amberpet Village and this court dismissed the said writ petition on 26.06.2015 and as such the present writ petition is not maintainable.
13. The other ground urged by the appellants is that the prayer in the writ petition is in the nature of perpetual injunction without mentioning the date of cause of action and nature of interference and the injunction simplicitor is being converted into a writ petition and as such the writ petition is not maintainable. It is also the case of the appellants that as per the revenue records, the subject land claimed by the petitioners as a private land is 16 classified as water body/tank, which is called "Bathukamma Kunta". As per Section 24 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, all the tanks/kuntas are the properties of the Government.
14. It is also urged that since the same pleadings have been taken in W.P.No.18235 of 2012 which was dismissed on merits, the findings recorded therein would operate as res judicata; and even if it is not res judicata, it is a constructive res judicata.
15. The subject land has been notified in Zoning Regulations as water body by issuing a notification. Since the said notification was not assailed, a writ petition of this nature seeking relief of injunction is not maintainable as there are triable issues relating to the nature of the land, its classification, extent and boundaries. The proper remedy for the petitioners would be to approach the competent civil court to establish their title. Further, one Syed Azam who also claims to be the successor of alleged original owner of Syed Aziz filed W.P.No.3499 of 2004 and the same was dismissed by this court vide order dated 17 09.07.2012. Therefore, the present writ petition filed by the petitioners for the very same relief is barred by res judicata or by the constructive res judicata and as such, writ petition is liable to be dismissed.
16. All the tanks which were under the control of the Irrigation and CAD Department were transferred to the Municipal Administration and Urban Development Department by issuing G.O.Ms.No.120 dated 02.12.2010. The present writ petition came to be filed by the petitioners after issuance of the said government order but without making Municipal Administration and Urban Development Department as party respondent, which is the controlling authority of all the tanks. Therefore, the writ petition filed is liable to be dismissed on the ground of non-joinder of necessary parties.
17. Appellants state that as per the revenue entries (pahanies), nature of the land was recorded as "Errakunta" (water body) and the name of the alleged predecessors of the petitioners was recorded in TSLR prepared for the year 1962. Therefore, the subsequent entries do not confer any 18 right on the petitioners and more particularly when there are serious disputes with regard to title over the subject property. It is also contented that as per the map prepared by Survey of India, the subject land is shown as water body and therefore, petitioners are not entitled to seek any relief from this court and the learned Single Judge instead of dismissing the writ petition had erroneously examined the evidence and gave a finding granting declaratory relief deciding the title, ownership and possession; such an exercise is not permissible in summary proceedings.
18. Appellants further stated that as per pahani for the year 1962, the land of Acs.9.19 guntas in Survey No.563/1 is recorded as "Errakunta" (water body); the pahani for the year 1974-75 mentioned the name of one Syed Azam in possessory column to the extent of Acs.5.29 guntas; and the names of B.Venkat Reddy and others were recorded to an extent of Acs.3.30 guntas. As per pahani of the year 1980-81, the land in Survey No.563/1 in khatadar (column No.11) the name of Syed Azam was shown in possessory column and B.Venkat Reddy and others were recorded in 19 the possessory column to an extent of Acs.3.30 guntas. As per pahani of 1967-68 and column No.11 thereof, the name of the account holder was shown as B.Venkat Reddy, the nature of possession as "pattadar" and name of the person cultivating as Syed Azam. In 1972-73 pahani in column No.11 i.e., pattadar column, the name of the land holder was shown as Syed Azam and others, nature of the land was shown as "as shown in Sy.No.2/1".
19. The Sethwar, which is prepared under the provisions of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli and issued on 13.11.2008 by the Inspector, Survey and Land Records, in respect of the land, shows the extent of Acs.9.19 guntas in Survey No.563/1 recorded in the name of one Bolepally Venkat Reddy as patta holder. Referring to the above, it is strenuously contended that in the absence of the sub division records being prepared for the land in Survey No.563/1, writ petitioners are not entitled to claim that the land purchased by them correlating to the land in Survey No.563/1. 20
20. It is further contended that as per the case of the petitioners that one Syed Aziz acquired the land to an extent of Acs.299.11 vide sale deed bearing document No.49/1946 from one Pingili Venkata Rami Reddy but as per the revenue records Pingili Venkata Rami Reddy was not the owner of the property and it is Bolepally Venkat Reddy as per the certificate issued by the survey land records dated 13.11.2008. Since the petitioners' predecessors' vendor is Pingili Venkat Rami Reddy, whose name is not reflected anywhere in the revenue records as pattadar, there is no valid transfer of the title in favour of the petitioners' predecessor-in-interest over the subject land. Petitioners having relied upon the sale deed miserably failed to enclose the same as material document. Even otherwise also, in view of the serious dispute with regard to the petitioners' vendor name, the same cannot be decided in the writ petition granting declaratory relief and the writ petition filed is misconceived.
21. Mr. P.Sri Raghuram, learned Senior Counsel for the petitioners submits that as per the entries made in the 21 Sethwar reveals the nature of the land forming part of survey No.563/1 as patta land and recorded in the name of one Bolepally Venkat Reddy, as such reliance placed by the respondents upon the kandem land register which shows the land in survey No.563/1 correlating Town Survey No.71/1 as Cheruvu (tank) cannot be accepted. Placing reliance on the judgment of State of Andhra Pradesh v. Pramila Modi1, learned Senior Counsel submits that the Sethwar prepared under the provisions of the A.P (Telangana) Land Revenue Act, 1317 Fasli, cannot be equated with mere revenue entries for the purpose of collection of revenue and that the entry recognising a person as pattadar cannot be treated a mere entry and patta itself is evidence of title. It is the contention of the learned Senior Counsel that even as per the revenue records, the word 'errakunta' is recorded as patta in column 2 in the pahani, therefore it has to be considered as a private tank. Further it is contended that the description as 'errakunta' does not mean it is tank since the word 'kunta' is added as a suffix to the word 1 2005 (3) ALD 105 (DB) 22 'errakunta'. Further, it is also contended by the learned Senior Counsel that once the land is recorded as patta land in the name of Bolepally Venkat Reddy and in the absence of any claim made by pattaholder namely Bolepally Venkat Reddy or the Pingili Venkat Rami Reddy, the respondents are not entitled to dispute the nature of the subject land at this length of time as the subject tank is a government tank. Further, it is the contention of the learned Senior Counsel that as per own version of the revenue department, the land in town survey Nos.70/2 and 71/1 correlates to survey No.563/1 and therefore, there is no dispute with regard to identification and boundaries of the subject land. He further submits that in appropriate cases the writ court has jurisdiction to entertain the writ petition involving the disputed questions of fact and there is no absolute bar for maintainability of the writ petition. For this proposition, learned Senior Counsel has relied upon the decision of the Supreme Court in ABL International Limited v. Export Credit Guarantee Corporation of India Limited2.
2 (2004) 3 SCC 553 23
22. It is the further contention of the learned Senior Counsel for the petitioners that pahanis filed as material papers disclose that the petitioners are in actual possession and enjoyment of the subject land. Therefore, the respondents are not entitled to dispute the possession of the petitioners. The respondents are disputing the possession of the petitioners with a mala fide intention to avoid initiation of the proceedings under the provisions of the Land Acquisition Act or under the provisions of the Land Encroachment Act. In the alternative, learned Senior Counsel submits that even if the respondents are having any claim over the subject land, they have to follow due process of law but they are not entitled to assume the powers for forceful eviction of the petitioners without following due process of law which action amounts to illegal interference and violation of principles of natural justice.
23. The learned Senior Counsel further submits that one Syed Azam filed W.P.No.3499 of 2004 questioning the notification issued by the Urban Land Ceiling authorities 24 under Section 10(5) of the Act and the authorities have computed the land including the alleged tank land, at this length of time, respondents are not entitled to dispute that the declarants are not the owners of the subject land. He has also placed reliance on the decision of the Supreme Court in State of Uttar Pradesh v. Hariram3.
24. It is also his further contention that since the authorities have entertained an application for regularisation by collecting the regularisation fee and issued the proceedings for regularisation, they are not allowed to deny the title of the petitioners as it is well settled proposition that even if the State is initially having any right, after regularising the land, the encroacher would become the absolute owner. Therefore, the authorities are not entitled to interfere with the possession of the petitioners over the subject land in any manner.
25. Learned Senior Counsel also submits that in the absence of filing Zonal Development Plan notifying the subject tank as earmarked for water body with 3 (2013) 4 SCC 280 25 surrounding area earmarked for park, the development of the water body along with the park cannot be accepted as any notification issued under the provisions of the Andhra Pradesh Land Area Development Act, 1975 and the authorities empowered under the said Act are only regulatory authorities but they are not having any power to change the nature of the land and its classification. For the said proposition, learned Senior Counsel relied upon the judgment of Pt. Chet Ram Vashist v. Municipal Corporation of Delhi4, Chairman, Indoor Vikas Pradikaran v. Pure Industrial Coke and Chemicals Limited5 and followed by M.Naga Venkata Lakshmi v. Visakhapatnam Municipal Corporation6.
26. Learned Senior Counsel has also relied upon Sections 32 and 54 of the Hyderabad Metropolitan Development Authority Act, 2008 (HMDA Act, for short) in support of his contention that the authorities have not issued any notification under the provisions of the HMDA Act, as such 4 (1995) 1 SCC 47 5 (2007) 8 SCC 705 6 (2007) 8 SCC 748 26 the notification issued under Zonal Development Plan notified under the Andhra Pradesh Urban Areas Development Act, 1975 shall continue to be in force unless a fresh notification has been issued revising new provisions of the HMDA Act.
27. The sum and substance of the contention of the learned Senior Counsel is that before issuance of notification under the provisions of the HMDA Act, the respondents have not informed that the subject land has been earmarked for development of water body and also tank to the owners of the land. If the land held by any person is required for the purpose of development of tank, they should issue notification under the provisions of the Land Acquisition Act and after payment of compensation under Section 32 of the HMDA Act, the authorities are entitled to utilise the land. In the absence of initiation of proceedings under the Land Acquisition Act, by simply issuing notification notifying the subject land for development of water body, the authorities cannot take away the rights of the person claiming compensation. 27
28. Learned Senior Counsel lastly submits that the earlier writ petition being W.P.No.18235 of 2012 has been dismissed for non-prosecution but the same is not decided on merits, and therefore filing of subsequent writ petition does not operate as res judicata and therefore, the present writ petition is maintainable.
29. Considered the submissions made by the learned counsel for the respective parties and perused the record.
30. It is the case of the petitioners that one Syed Aziz acquired an extent of Acs.299.11 guntas under the registered sale deed bearing document No.49/1946 from late Pingili Venkat Rami Reddy. The said Syed Aziz died in the year 1960 and the petitioners succeeded to the said property. It is the claim of the petitioners that the subject land was purchased by their predecessors-in-interest is located in survey No.563/1 correlating to town survey No.71/1. It is the further contention that as per the Sethwar of Amberpet village land in survey No.563/1 to an extent of Acs.9.11 guntas is originally recorded in the name 28 of Bolepally Venkat Reddy as khatadar and subsequently the said survey number has been sub-divided into survey No.563/1 correlating to town survey No. 71/1 and 70/2. Further case of the petitioners is that their mother also filed a declaration under the provisions of the ULC Act and the competent authority has conducted enquiry and final orders have been passed under Section 8(4) of the ULC Act. The ceiling proceedings have not been concluded and the State has not taken possession of the excess land by following due process of law contemplated under the ULC Act by issuing notification under Sections 10(5) and 10(6) of the ULC Act, during the pendency of the proceedings, the Repeal Act came into force and as such, proceedings initiated under the ULC Act stood abated.
31. It is the case of the petitioners that before abatement of the urban land ceiling proceedings, they have also made an application under G.O.Ms.No.455 and 456 seeking regularization of the subject land. According to the petitioners, the Commissioner, GHMC has issued proceedings regularizing the land to an extent of 1025.98 29 square meters in survey No.563/1 in the year 2010 by collecting a sum of Rs.45,70,072.00 in favour of the third petitioner. So far petitioners No.1 and 2 are concerned, they have been directed by the Government to pay a sum of Rs.1,04,53,440.00 for regularization of the land vide intimation letter dated 04.04.2010. Since the Government after considering all the documents have issued intimation letters and also issued proceedings regularizing the land in favour of the third petitioner, the Government now cannot turn around and dispute the ownership of the subject land stating that it is a tank.
32. Learned Government Pleader has vehemently argued that the subject land claimed by the petitioners forms part of survey No.563/1 wherein there is an existing tank (water body) commonly called as Bathukammakunta. As per Section 24 of the Land Revenue Act, all public roads, lanes, rivers, streams, tanks etc., are the property of the Government except those belonging to the persons capable of holding property. In the event of dispute with regard to the nature and its classification of the subject land, the 30 petitioners have to approach the competent civil court and establish their title. In the absence of any declaratory decree from the competent civil court, the petitioners' claim as owners of the subject land cannot be countenanced and the writ petition filed is liable to be dismissed.
33. The learned Government Pleader has further contended that the petitioners instead of approaching the civil court to establish their title, straightaway filed the writ petition before this Court and invited this Court to decide the disputed question of fact relating to title, ownership and possession in a summary jurisdiction under Article 226 of the Constitution of India and as such, the writ petition is not maintainable.
34. Learned Government Pleader argued that in the absence of seeking consequential relief of deciding the title, the prayer made in the writ petition is not sustainable and in the absence of consequential prayer, the learned Single Judge has committed error in allowing the writ petition granting relief over and above the prayer made in the writ petition in deciding the petitioners as title holders of the 31 subject land. Further, it is contended that the petitioners failed to establish correlation to the survey numbers and mere admission by the respondents in the counter affidavit does not ratify the right of the petitioners over the subject land. Earlier, when the writ petition being W.P.No.18235 of 2012 has been filed by the petitioners, a counter affidavit has been filed by GHMC stating that the subject land claimed by the petitioners is a water body and the same is vested in the State free from all encumbrances. Therefore, if any concession is given by the Government for regularizing the land in favour of the petitioners it does not amount to accepting the title of the petitioners. Since the tank is a community property and the State authorities are the trustees to hold and manage the said property for the benefit of the community, they cannot be allowed to commit any act or omission which will infringe the right of the community by alienating the property to any other person or body. In this connection, he has placed emphasis on the judgments of the Supreme Court in Intellectual 32 Forum, Tirupathi v. State of Andhra Pradesh7 and Hinch Lal Tiwari v. Kamala Devi8.
35. To examine the case in detail, it is necessary to examine certain provisions of the Land Revenue Act, particularly Section 24 of the said Act which reads as under:
24. All lands etc., are property of Government: All public roads, lanes, paths, bridges, ditches, dikes, rivers, streams, tanks, ponds, canals, lakes and flowing water and all lands, wherever situated, together with all rights appertaining thereto are the property of the Government excepting:-
(a) those belonging to persons or class legally capable of holding property and to the extent so far as their such rights are established;
(b) those in respect of which any other order under any law may have been given.
It shall be lawful for the Collector or other officer appointed by the Government for this purpose subject to rules sanctioned by the Government and contained in notification and the order of the Board of Revenue, to dispose of them in his discretion; but the right of way or other rights legally vesting in any person or the public shall subsist.
7 AIR 2006 SC 1350 8 (2001) 6 SCC 496 33
36. As per the above provision, all the tanks including the public roads, lanes, bridges etc., are the properties of the Government and they are vested in the State free from all encumbrances. The Land Revenue Act is a comprehensive enactment which classifies the nature of lands, right of the Government or the private individuals vis-à-vis the regularization of the lands. This comprehensive enactment confers power on the State to claim all the lands and tanks are belonging to the State except certain exceptions carved out. State while exercising power has even made a provision for prohibition of granting pattas to the tanks or the tank bed lands or any public nalas. As per the Master Plan sanctioned in G.O.Ms.No.363, dated 21.08.2010, the land in survey No.563/1 is earmarked as water body and Government also issued G.O.Ms.No.120 dated 02.12.2010 transferring 399 tanks/lakes/water bodies from the control of the Irrigation and Command Area Development to Municipal Administration and Urban Development Department. The said tank known as 'Bathkammakunta' stood at Sl.No.1. In the Master Plan the said tank was shown as earmarked as 34 water body. Relying on the aforesaid GOs, the Irrigation Department as well as the Municipal Corporation requested the Government not to entertain any applications for regularization of the encroachment or conversion of the lands from residential use zone to the extent Acs.6.09 guntas in survey No.563/1 to recreational/conservation use. The records enclosed by the Government also depict different entries in the revenue records with regard to the ownership and possession. As per pahani for the year 1972-73, the word denotes specifically 'errakunta' in column No.2 in relation to survey No.563/1. The pahani for the year 1967-68 also shows in column 11, the name of the accountholder as B.Venkat Reddy, whereas the names of the petitioners' predecessors- in-interest were shown as possessors.
37. The main contention of the petitioners is that Syed Aziz acquired the property to an extent of Acs.299.11 guntas at Bagh Amberpet, Hyderabad under registered sale deed vide document No.49/1946 from Pingili Venkat Reddy. This document was not placed on record to know 35 the contents of the document to examine the nature of the lands, extent and its classification and the area involved in the litigation. As per the revenue records, the name of one Bolepally Venkat Reddy was shown as pattadar. There is a variation in the name mentioned as pattadar in the registered sale deed relied upon by the petitioners in document No.49/1946 and the name entered in the revenue records as pattadar. Therefore, unless and until this issue has been examined after considering the evidence, we are of the view that this Court exercising jurisdiction under Article 226 of the Constitution of India cannot give a finding with regard to the nature of the land and its classification. When a title disputes are seriously adjudicated in a summary jurisdiction under Article 226 of the Constitution of India, much pain and strain has to be taken which requires examination of the original documents and its authenticity and correlation of the survey numbers in the registered sale deeds.
38. The Apex Court in the case of Intellectual Forum (supra) held that natural resources are the properties of 36 the State and the State will act as the trustee of the public. The Apex Court further observed in paragraph 91 that it is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body.
39. It is the case of the petitioners that since the respondents have regularised the subject land, they cannot dispute that the petitioners are owners of the subject land. It is not the case that it is a Government land and the petitioners are in encroachment of the same or they are in possession of the same since long time and their case has been considered. Rather it is the case of the petitioners that their predecessors-in-interest Syed Aziz is the absolute owner of the property and the respondent authorities, without acquiring or without initiating any action in accordance with law, are trying to dispossess the petitioners from the subject land, wherein the tank was 37 existing. Admittedly, it is the case of the respondents that there was existing tank which confirms that there is a water body and the subject land was also referred to as tank lands in the map prepared by Survey of India. Therefore, the petitioners cannot say that there was no tank existing in the absence of cogent evidence. Further, the writ petition has been filed by the petitioners claiming that they are in possession and enjoyment of the subject land. If this is accepted, it means that there must not be any tank or water body. Since as per the map prepared by Survey of India, there was an existing tank, petitioners cannot say that there was no tank existing and they are in possession of certain part of the land which shows that the petitioners, taking advantage of the denuding tank or reducing FTL of the tank, have made attempts to take possession of the portion of the tank. These are the issues required examination by the competent civil court in a suit instituted for declaration of title.
40. Admittedly, the relief sought in the writ petition is that the petitioners are in possession of the property and the respondents are interfering with their possession. It is 38 the case of the respondents that there is a tank existing and the petitioners were never in possession or enjoyment of the subject land.
41. As per the provisions of the Land Revenue Act, land comprising water bodies cannot be alienated for any purpose and the cultivation carried on the tank beds or water bodies does not denude the land of its character as water bodies. It is settled that when there is a serious dispute with regard to the existence of water body, it cannot be decided in a writ petition exercising jurisdiction under Article 226 of the Constitution of India (See Sarvepalli Ramaiah v. District Collector, Chittoor District9).
42. In Jagpal Singh v. State of Punjab10 Supreme Court heavily came down on the State administration and directed the Chief Secretaries of all the States and Union Territories to evict the illegal occupiers/encroachers from 9 (2019) 4 SCC 500 10 (2011) 11 SCC 396 39 tank bed lands or ponds. Supreme Court observed in paragraph 20 as under:
20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so-
called auctions is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.
43. In R.Hanumaiah v. Secretary to Government of Karnataka, Revenue Department11 the Supreme Court while deciding whether the tank is a private tank or a public tank as per the entries made in Mysore Revenue Manual, observed as under:
10. A careful reading of Para 376 of the Manual shows that a private tank can be constructed by a private individual, either in his own land or on government unoccupied land. It also shows that private individuals may restore government tanks. Therefore it follows that when a tank is described as "private" in the tank register, that by itself will not establish that the land 11 (2010) 5 SCC 203 40 where the tank is situated is private land. To put it differently, when a tank enumerated in the tank register maintained by the Government, adds to the description of the tank, by the word "private", it merely shows that the tank in question had been constructed by a private individual but it does not lead to the inference that the land on which the tank is constructed belonged to a private individual.
44. It is a settled law that the power of judicial review is exercisable under Article 226 of the Constitution of India only on the grounds of perversity, patent illegality, irrationality, power to take a decision and procedural irregularity. Admittedly, on reading of the entire affidavit filed in support of the writ petition and the grounds urged therein, it does not disclose any patent illegality or lack of power of Government to notify the subject tank as water body. Further, the petitioners have not chosen to question the notification issued by the Government notifying the water tank (Bathkammakunta) and transfer of the said tank from the control of the Irrigation and Command Area Development Department to the control of the Municipal Administration and Urban Development Department. 41
45. Even as per the version of the petitioners, they have purchased the property through registered sale deed from Pingili Venkat Rami Reddy, whereas the revenue records disclose the name of the pattadar as Bolepally Venkat Reddy. Therefore, there is a difference of names entered in the revenue records in pattadar column. Therefore, the judgment relied on by the petitioners before the learned Single Judge in the case of the Pramila Modi (supra) does not come to the aid of the petitioners.
46. Learned Senior Counsel for the writ petitioners has laid great emphasis on the decision of the Supreme Court in ABL International Limited (supra) in support of the contention that in appropriate cases, the writ court has jurisdiction to entertain writ petition involving disputed question of fact. There is no absolute bar to exercise the discretion. There is no dispute with regard to the said proposition that in appropriate cases when the fact pertaining to interpretation/meaning of documents or part thereof are involved, this Court can entertain the writ petition. The present is a case where the relief sought for 42 in the writ petition is with regard to possession of the property. The petitioners have relied upon the entries made in the revenue records to establish that they are in possession of the subject land. However, the entries relied upon by the petitioners would reveal that some entries are made in favour of the petitioners, whereas some entries are made in favour of other parties in different columns of the pahanis. It is settled that the pahanis are never considered to be a record of rights as per the provisions of the Telangana Rights in Land and Pattadar Passbooks Act, 2020, or the Rules made thereunder. The pahanis maintained in the Land Revenue Tenure only for the purpose of collection of the revenue cess to the Government and the nature of the crops harvested thereunder and there is no dispute that Telangana Rights in Land and Pattadar Passbooks Act, 2020 is applicable only to the agricultural lands and in view of the filing a declaration before the Urban Land Ceiling authority, the subject land is urban land. Therefore, the submission that in appropriate cases, the writ court can exercise its 43 jurisdiction though the disputed questions of fact are involved does not apply to the facts of the present case.
47. The petitioners having submitted the application seeking regularization of the subject land accepting the title of the Government, cannot turn back and dispute the title of the Government by filing a writ petition. The present writ petition is not maintainable in the absence of challenge to the notification issued by the HMDA and also not making the HMDA party respondent, under whose control the tanks are vested. In the absence of HMDA a party to the writ petition, the writ petition is liable to be dismissed for non-joinder of necessary parties.
48. The issues involved in this appeal are the material questions which require to be decided on examination of evidence and on material documents and the same cannot be decided in the writ petition. These questions in our view were pure questions of facts and could be answered one way or the other by the competent civil court in properly constituted civil suit on the basis of the evidence adduced by the parties but not on the documents filed in the writ 44 jurisdiction. Further, the veracity of the said documents has to be examined as per the provisions of the Evidence Act.
49. Further, the remedy under Article 226 of the Constitution of India shall not be available except where there is infringement of right of the persons by the action of the statutory authorities and this Court exercising power under the writ jurisdiction cannot decide the disputed questions as there is availability of remedy under the general law. In catena of judgments Supreme Court held that the power under Article 226 of the Constitution of India is not intended to replace the remedy available to the person aggrieved by filing a civil suit. (see Mohan Pandey v. Usha Rani Rajgaria12 and Dwarka Prasad Agarwal v. B.D.Agarwal13).
50. This Court finds substance in the submissions made by the learned Government Pleader. It is fact that the writ petition came to be filed in the year 2012 and much prior 12 (1992) 4 SCC 61 13 (2003) 6 SCC 230 45 to filing of the writ petition, the subject tank (Bathukammakunta) was notified as a water body under the Master Plan sanction vide G.O.Ms.No.363, dated 21.08.2010 and also the same was transferred from the control of the Irrigation Department to Municipal Administration and Urban Development Department. Therefore, both the authorities ought to have been made as party respondents to place relevant material on record to establish whether the subject land is a private tank as claimed by the petitioners or is a public tank vested in the State free from all encumbrances as per the provisions of the Land Revenue Act, 1317 Fasli.
51. In view of the above discussion, we are unable to agree with the reasons and conclusions arrived at by the learned Single Judge in the writ petition.
52. Resultantly, the writ appeal is allowed setting aside the order dated 17.08.2016 passed by the learned Single Judge in W.P.No.26405 of 2012. The writ petitioners are relegated to approach the competent Civil Court by instituting appropriate civil suit and in the event of said 46 suit being instituted, the Court below is directed to dispose of the same without being influenced by any of the observations made by this Court.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 07.07.2023 JSU