Andhra HC (Pre-Telangana)
G. Kalavathi vs C. Anand Rau And Others on 19 January, 2001
Equivalent citations: 2001(2)ALD2, 2001(2)ALT119, 2001CRILJ2253
Author: J. Chelameswar
Bench: J. Chelameswar
ORDER N.Y. Hanumanthappa, J.
1. The contempt case in CC No.1819 of 1999 has been filed by the petitioner against five official respondents and four unofficial respondents viz., Sri C. Anand Rau, Chief Secretary to the Government of Andhra Pradesh, Sri Bhanwarilal, Hyderabad District Collector (Sri Anand Rau's name was later deleted from the cause title as not necessary party by order of the Court dated 29-3-2000), Sri C. Prabhakar, the Mandal Revenue Officer, Shaikpet Mandal Hyderabad, Sri D. Sri. Rama Murthy, Chief Engineer (Buildings), Roads and Buildings Department, Hyderabad, Sri M. Veera Bhadraiah, M/s. Mohan Reddy, Subrahmanyam, Ramesh Reddy and Sri Srinivas Rao, Hyderabad alleging that they disobeyed the orders of this Court in WP No.11714 of 1986, dated 14-10-1988 and WA No.742 of 1989, dated 14-9-1995 by making constructions of residential quarters for Ministers as they shall be summoned and punished.
2. The Contempt Application in CA No.1563 of 1999 has also been preferred by the petitioner seeking a direction to the respondents-contemnors to stop the construction over the land of the petitioner admeasuring Ac.10-00 in S.No.129/36/1 of Shaikpet village, Road No.13, Banjara Hills, Hyderabad, covered by the notice, dated 20-6-1986, pending disposal of the CC.
3. The facts that lead to the filing of the Contempt Case by the petitioner, in brief, are that she is the absolute owner and possessor of land admeasuring Ac. 10-00 in S.No.129/36/1, being part of S.No.403, Shaikpet village, Road No.13, Banjara Hills, Hyderabad. She purchased the said property under a registered sale deed, bearing document No.279-1991, dated 11-02-1971, from one Mr. Papaiah. The said Papaiah had purchased the said property under a registered sale deed, bearing document No.573/1963, dated 28-02-1963, from one Venkat Swamy. The said Venkat Swamy got the said property through a patta issued by the authorities way back in the year 1340 Fasli. The said property is bounded by North: Nala (Government land), South: Road No.13, East: Land in S.No.129/75 belonging to Hyderabad Industries Limited and West: Land belonging to Khazi Mohd. Hussain in S.No.129/36. She leased out the said land in favour of M/s. Hyderabad Industries Limited under a registered lease deed, dated 27-6-1971. The Mandal Revenue Officer, Golconda Mandal, issued a notice under Section 6 of the A.P. Land Encroachment Act, 1905, dated 20-6-1986, bearing No.C/4360/1983, calling upon her lessee to vacate the land within three days from the date of receipt of the said notice. Assailing the said notice, she filed Writ Petition No.11714 of 1986 seeking a declaration that the action of the Mandal Revenue Officer in issuing the said notice as illegal, arbitrary and unconstitutional and further to direct the Officer not to interfere with her possession over the said land, which was allowed by this Court by an order, dated 14-10-1988. Aggrieved by the said order of the learned single Judge, the State filed Writ Appeal No.742 of 1989, wherein the Division Bench of this Court while dismissing the appeal on 14-9-1995 directed the parties to maintain status quo for a period of three months from that day to take appropriate steps by the Government. Inspite of the fact that this Court granted three months time to take appropriate steps by the Government, no steps were taken to establish their title by way of a civil suit. Since the said notice, dated 20-6-1986, was held to be illegal, she is in continuous enjoyment with absolute rights as the owner of the said property. As the matters stood thus, it was stated, respondent Nos.1 to 5 herein have permitted the contractors i.e., respondent Nos.6 to 9 to undertake construction of residential quarters for the Ministers. On 19-11-1999 she visited the said property and to her surprise and shock she found that the construction of buildings was taking place over the land in question. On 20-11-1999 she got issued a telegraphic notice from the office of Sri Mahmood Ali, Advocate, calling upon the respondents to stop the construction activity forthwith. On 23-11-1999 she got issued another telegraphic notice for the same purpose. Finally, on 26-11-1999 she got issued a registered notice from the office of the said Advocate calling upon the respondents to stop construction work over her land. Along with the said notice, she also enclosed copies of the orders in Writ Petition No.11714 of 1988 and Writ Appeal No.742 of 1989 and the aforesaid two telegraphic notices. But, the said notices have no effect on the respondents as they are proceeding with the construction work with great speed. She also got the buildings under construction photographed. In the past also when the authorities tried to lay a road through the said property, she got issued a notice, dated 17-12-1988, from the office of Sri P. Ramachandra Reddy, Advocate. Thereupon, the work was stopped. The construction work of buildings undertaken by the respondents is in total violation of the aforesaid orders of this Court. On enquiry, it was stated, she learnt that the construction activity commenced sometime in August, 1999, and being a housewife she came to know of the same only in the third week of November, 1999. Therefore, in view of the above facts, the respondents are guilty of contempt of the authority of this Court and are liable to be punished under Sections 10 and 12 of the Contempt of Courts Act. Therefore, she prayed to summon the respondents and punish them for wilful disobedience of the Orders of this Court passed in Writ Appeal No.742 of 1989, dated 14-9-1995, in the interest of justice.
4. Sri Bhanwarlal, District Collector and District Magistrate, Hyderabad, filed counter-affidavit contending that since the present Contempt Case is filed against the respondents and except respondent No.3 viz., the Mandal Revenue Officer, Golconda Mandal, the same is not maintainable as the Chief Secretary to the Government, the District Collector etc., are either parties to the writ petition or to the writ appeal before, this Court and the same is liable to be dismissed in limini on this ground alone. The petitioner in the present contempt case is complaining abut the alleged disobedience of the orders of this Court in Writ Appeal No.742 of 1989, dated 14-09-1995 and the same is not maintainable as it is barred by time. The petitioner is trying to trace out her title to the property of an extent of Ac.10-00 guntas in Banjara Hills, Shaikpet Mandal, Hyderabad, through one M. Papaiah, who said to have purchased the said land from one Venkat Swamy. There is a reason to believe that the alleged vendor of the petitioner or her vendor's vendor have no valid title over the property. The validity or otherwise of those documents etc., are not the issues involved in the present proceedings and they will be agitated separately in appropriate proceedings. Be that as it may, a perusal of the documents sought to be relied on by the petitioner reveal the following facts.-
1. One Venkat Swamy of Gowlipura, Hyderabad, sold an extent of Ac.10-00 of land in S.No.129/1 situated at Banjara Hills, Shaikpet Mandal, Hyderabad vide document No.573/63, dated 4-3-1963, to one M. Papaiah.
2. The said land of an extent of Ac.10-00 in S.No.129/1 was subsequently purchased by Smt. G. Kalavathi from M. Papaiah of Jangammeth, Hyderabad, vide document No.279/71, dated 12-2-1971. In the said document, the description of the property is mentioned as an extent of Ac. 10-00 of land (48,400 sq.yards) in S.No.129/1 situated at Banjara Hills, Shaikpet Mandal, Hyderabad.
3. Thereafter, Smt. G. Kalavathi, the petitioner herein leased out the said property to M/s. Hyderabad Asbestos Cement Products Limited (presently known as M/s. Hyderabad Industries Limited) a company incorporated under the Indian Companies Act, having its registered office at Sanathnagar, Hyderabad, which is a Birla Group of Industries, for 99 years vide lease deed document No.2021/72, dated 25-5-1972. In the said lease deed, the property was described as an extent of about 40,650 square meters equivalent to 48,400/- square yards (Ac.10-00).
5. It is further stated in the counter-affidavit that in the said lease deed, the petitioner had categorically mentioned about the sources to her title to the said property instead of describing the location of the said property as located in S.No.129/1 she mentioned the survey number as "129/36/1", which is absolutely not tallying with her own documents. M/s. Hyderabad Asbestos Cement Products Limited, a Birla Group of Industries, claimed that they purchased some extent of land in S.No.129/75, which is adjacent to the land obtained by them on long lease for a period of 99 years from the petitioner. Under the guise of the lands purchased by Birla Group of Industries and the long lease entered into with the petitioner, when they tried to encroach upon the Government land in S.No.403, part correlated to T.S. No.3/1, Ward-11, Block 'S', Shaikpet village, the then Mandal Revenue Officer, Golconda Mandal, initiated proceedings under A.P. Land Encroachment Act (for short the "Act'). At the stage the petitioner questioned the said proceedings in Writ Petition No.11714 of 1986 before this Court. The petitioner, making only the then Mandal Revenue Officer, Golconda Mandal, as a party-respondent filed the said writ petition, which was allowed by a learned single Judge of this Court on 14-10-1988 mainly on the ground that no notices were issued to the petitioner. It was held by the learned single Judge that though notices were issued to Hyderabad Industries Limited, no notices were issued to the writ petitioner. As the issue involved is one of title, principles of natural justice requires that notice should have been given to the person claiming title. On that ground, the said writ petition was allowed with an observation that it is open to the Government to file a suit and get their title established. Writ Appeal No.742 of 1989, filed by the Government against the orders passed in said writ petition, was dismissed by a Division Bench of this Court on the ground that it is not proper to resort to summary proceedings under the Land Encroachment Act. It is stated that the allegation that the respondents herein are making constructions in wilful disobedience of the orders passed by this Court, dated 14-9-1995, is totally untrue. There is huge extent of 1,95,714 square meters of Government land in T.S. No.3/1, old S.No.403, part in Ward No.11, Block 'S', Shaikpet village, and in part of the said land, it was proposed to construct Ministers Residential Quarters. The scheme for construction of Ministers' residential quarters were approved in the year 1986. Accordingly, a foundation stone was laid on 11-12-1986 by the then Chief Minister in a public meeting, which was also given vide coverage through media. The Government accorded administrative sanction and released a sum of Rs.3.38 crores for the first phase of construction of six quarters out of 40 residential quarters for the Ministers, vide G.O. Ms. No.355, T.R&B Department. The Ministers have already occupied the said six quarters in the year 1991. There was delay in execution of the said project work due to one reason or the other and due to paucity of funds. Thereafter, the second phase of construction work was taken up during this year. The Government have accorded sanction and released a sum of Rs.20.S6 crores for construction of twenty four quarters in the second phase, vide G.O. Ms. No.42, T.R&B Department, dated 12-04-1999. Accordingly, the works were entrusted to the contractors on 1-7-1999 and the works are progressing in full swing and almost nearing completion except finishing and spill over works and they will be completed in all respects within a short time. It may here be claimed that the Ministers' quarters are being constructed in new S.No.403/part correlated to T.S.No.3/1P, Block "S", Ward No.11, Shaikpet village, whereas the subject matter of the earlier proceedings under the A.P. Land Encroachment Act, the writ petition and the writ appeal are for Ac. 14-00 guntas of land, which has nothing to do with the land where Minister's quarters are under construction. Therefore, the allegation that the respondents herein are disobeying or violating the earlier orders of this Court is absolutely incorrect and untrue. The discrepancy in survey numbers i.e., S.No.129/1 as furnished by the petitioner's vendor and S.No.129/36/1 as mentioned by the petitioner have also been set out. There was no S.No.129/36/1 in existence. Shaikpet village was originally a Sarfekhas village. After merger of Sarfekhas in Diwani in 1358-Fasli (1949 A.D), the administration of the village was transferred and vested with the Diwani (Government). The initial survey of Shaikpet village was commenced in 1326-Fasli (1916 A.D) and the same was implemented in 1330-Fasli (1920 A.D). The S.No.129 measuring Ac.3,228-02 guntas was shown as Government land, which was locally known as "Kancha Tatti Khana". In the year 1331 Fasli (1921 A.D) supplementary sethwar was issued creating S.Nos.129/1 to 129/10 and S.No.129/1 was of Ac.3,094-39 guntas and S.No.129/2 to 129/10 were of Ac.193-03 guntas. In the year 1345 Fasli, a supplementary sethwar was issued, re-numbering S.No.129/1 as S.Nos.403 and 404 and deleting S.Nos.129/2 to 129/10 and re-numbering as S.Nos.353 to 402. Therefore, the Mandal Revenue Officer, Golconda Mandal, mentioned the new S.No.403 part, which was equivalent to the original S.No.129/1 in the proceedings initiated under the A.P. Land Encroachment Act, 1905. Town survey was conducted during the years 1964 to 1971 under the provisions of Andhra Pradesh Survey and Boundaries Act, 1923. A notification as required under Section 6(1) of the said Act was issued about the proposed town survey. After conclusion of town survey, a final notification as required under Section 13 of the said Act was published in Andhra Pradesh Gazette No.13, dated 28-2-1977. The entries in the Town Survey Land Register became final as they were not challenged by way of a suit as provided under Section 14 of the said Act within three years from the date of Gazette publication. New S.No.403 part was correlated to T.S.No.3/1P, Ward No.11, Block "S", Shaikpet village. As seen from the Revenue Records/Survey Records, there was no S.No.129/36/1 at all. But, the petitioner herein, obviously, with an ulterior motive, contrary to the documents sought to be relied on by her, is trying to describe the property as if it is in S.No.129/36/1, which is a non-existing and ghost survey number. The only ground on which the writ petition was allowed is that there was no notice to the petitioner who said to be the original owner. Under the guise of the so-called documents when the petitioner tried to encroach upon and interfere with the construction activity on the Government land for which the Government have filed LGCSR No.4755 of 1999 (numbered as LGC No.25 of 2000) against the petitioner before the Special Court under A.P. Land Grabbing Act. The vendor of the petitioner viz., Papaiah himself or his vendor were not having valid title to the property in question. Two more persons namely Smt. Polo Rama Devi, Chintepally Atchaiah and another are also trying to claim a part of the same Government property on the basis of some fabricated documents and they have filed suits before the City Civil Court, Hyderabad, but could not obtain any injunction orders against the Government. The averment that inspite of the orders of this Court the respondents did not chose to file any suit against the petitioner for establishing their title is not true and they have already initiated action. The land on which the Ministers' quarters are being constructed is entirely different from the subject matter of the earlier land encroachment proceedings. As stated earlier though a foundation stone was laid as early as on 11-12-1986 and the first phase of six quarters were completed in the year 1991 and were given possession to the Ministers, there was no whisper from the petitioner all these years itself disproves her allegations. The entire extent was developed into individual plots by laying roads and retaining walls, by spending considerable amount, during the period 1986-1991. The second phase of twenty four quarters construction works were taken up as the Government accorded sanction and released a sum of Rs.20.86 crores, vide G.O. Ms.No.42, dated 12-4-1999. The petitioner is trying to twist the facts as if the construction works were taken up only in November, 1999, which is factually incorrect. Photographs of the quarters already constructed during 1991 and under construction are enclosed to the counter-affidavit. The petitioner under the guise of the earlier orders of this Court with an ulterior motive is trying to stall the whole construction, which is in full swing. There is no violation or disobedience muchless wilful disobedience on his part to the orders passed by this Court. Thus, contending he prays to drop further proceeding in the contempt case and dismiss the same.
6. The writ petitioner filed reply affidavit contending that the contentions in the counter-affidavit filed by Sri Bhanvarlal, District Collector and District Magistrate, Hyderabad, are wholly untenable and factually incorrect. The persons who have knowledge of the orders of this Court and act in violation of such orders are guilty of Contempt of Court. In her affidavit she stated that the construction work, began in August, 1999, which fact she learnt on 19-11-1999. Therefore, the Contempt Case filed by her is not time barred. Various contentions raised in the counter-affidavit regarding title were debated in the writ proceedings and the Government was directed to approach the Civil Court to establish its title. Therefore, it is not permissible for the Government to raise the very same pleas. Suffice it to say that she is having valid title to the Ac.10-00 guntas of land in question and until the illegal construction began, she was in possession thereof. It is absolutely false to say that the construction work is completed or that she acquiesced in the matter. It is absolutely false to state that there is no construction work on Ac. 10-00 guntas of land held by her. The identity of the property was never in doubt. The notice, dated 14-10-1985, speaks of encroachment by her lessee. The order, dated 20-6-1986, is to the same effect. In the counter-affidavit, at page No.5, filed in the writ petition it is admitted that "the area of Ac. 10-00 guntas claimed by the writ petitioner formed part of TS. No.3/1, Block "S" and Ward No-11". Admittedly, the present construction is taking place in the land in question.
7. Further, the authorities in utter violation of the order of the Court, forcibly entered into her land. No proceedings could have been initiated against her under the provisions of the A.P. Land Grabbing (Prohibition) Act, 1982. On enquiry, it is learnt that the LGCSR No.4755 of 1999 was filed on 27-12-1999, which is numbered as LGC No.25 of 2000. Thus contending, she prays to summon the respondents and punish them according to law and direct re-delivery of possession of Ac.10-00 guntas to her.
8. It is relevant to refer the earlier proceedings in WP No.11714 of 1986 and WA No.742 of 1989. Smt. Kalavathi, the petitioner in the contempt case, filed WP No.11714 of 1986 seeking for a mandamus declaring the notice issued by the respondent under Section 6 of the A.P. Land Encroachment Act, 1905 in No.C/4360/1983, dated 20-6-1986 directing eviction of her lessee, Hyderabad Industries Limited, from the land in question as illegal and without jurisdiction on the ground that she purchased the land in an extent of Ac. 10-00 gts. in Sy.No.129/36/1, Shaikpet Village, Hyderabad under a registered sale deed, dated 11-2-1971 from one Papaiah, who earlier purchased the said land under a registered sale deed dated 28-2-1963 from one Venkata Swamy, who acquired the said property under a grant of patta in 1340 Fasli. From the date of her purchase the petitioner was in possession of the said property and leased it out to M/s. Hyderabad Industries Limited under a registered lease deed dated 27-6-1971 for over 99 years. From the date of the lease the Hyderabad Industries Limited is in possession of the same. The respondents without causing a notice whatsoever to the petitioner, who is the owner of the property, issued notice to the Hyderabad Industries Limited under the provisions of the Land Encroachment Act. The said notice was challenged contending that the proceedings initiated under Section 6 of the Land Encroachment Act against the lessee is illegal as there is no notice was issued to the petitioner, the owner.
9. Since the facts stated in the counter filed by the District Collector in the contempt case are almost similar to the facts stated by the Mandal Revenue Officer in writ petition, the reference of the same would be a repetition and the same need not be referred to.
10. Pending the writ petition in WP No.11714 of 1986 after hearing both the parties the learned single Judge of this Court granted interim order on 18-4-1988 in WPMP No. 15310 of 1986 granting stay of operation of the eviction order passed by the Mandal Revenue Officer, which was made absolute by subsequent order in WVMP No.1726 of 1986. Aggrieved by the same the State preferred WA No.705 of 1988, which was disposed of on 28-4-1988 at the stage of admission by the Division Bench observing that they do not propose to interfere with the interim order of stay granted by the learned single Judge.
11. In the said writ petition the writ petitioner urged two grounds -- (i) that resorting to the provisions of the Land Encroachment Act which are summary in nature in a case where there is bona fide dispute as to title and the Government has been out of possession and private parties are in possession for over several years is contrary to law and without jurisdiction and (ii) that the impugned proceedings under Sections 6 and 7 of the Land Encroachment Act are void in as much as no notice was given to the petitioner. The learned single Judge referring to some of the provisions of the Land Encroachment Act and the law laid down by the Supreme Court in Govt. of A.P. v. T. Krishna Rao, AIR 1982 SC 135, answered the first contention accordingly, which runs as follows:
"The Andhra Pradesh Land Encroachment Act was passed to check unauthorised occupation of the, lands, which are the property of the Government. The preamble says that it had been the practice to check unauthorised occupation of lands which are the property of the Government "by the imposition of penal or prohibitory assessment or charge" and since doubts had arisen whether such practice was authorised by law, it had become necessary to make statutory provisions for checking unauthorised occupations. Section 2(1) of the Act provides that all public roads, streets, lands paths, bridges etc., shall be deemed to be the property belonging to Government, unless it falls under clauses (a) to (e) of that section. Sub-section (2) of Section 2 provides that all public roads and streets vested in any public authority shall be deemed to be the property of the Government. Under Section 3(1) a person in unauthorised occupation of any land which is the property of the Government is liable to pay assessment as provided in Clauses (i) and (ii) of that section. Section 5 provides for levy of penal assessment. Sections 6(1) and 7 which are relevant for our purpose, read thus:
"Any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 may be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as Collector, Tahsildar, or Deputy Tahsildar may deem reasonable, be liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct".
"Section 7': Before taking proceedings under Section 5 or Section 6, the Collector or Tahsildar or Deputy Tahsildar as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show-cause before a certain a date why he should not be proceeded against under Section 5 or Section 6."
A reading of these provisions makes it clear that it is a summary remedy and it can be resorted to by the Government only against persons who are in unauthorized occupation of any land, which is the "property of the Government". In regard to property described in sub-sections (1) and (2) of Section 2 there can be no doubt or dispute as to the title of the Government. Therefore, in respect of such property, the Government would be free to take recourse to summary remedy of eviction provided in Section 6. A person, who occupy a part of a public road and the like is in authorised occupation of property of the Government. Therefore, it is necessary to evict him expeditiously which can be only done by restoring to the summary remedy provided by the Act. But Section 6(1) which confers power of summary eviction on the Government limits that power to cases in which a person is in unauthorized occupation of a land for which he is liable to pay assessment under Section 3. Section 3 in turn refers to unauthorised occupation of any land, which is the property of the Government. If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person, who is in possession of the property under a bona fide claim or title. In the instant case, the petitioner purchased the property under a registered sale deed in the year 1971 from Papaiah. Papaiah himself purchased the same land under a registered sale deed from one Venkata Swamy on 28-2-1963. It is claimed that Venkata Swamy was granted a patta from Sarfekhas in 1340 Fasli.
In support of the claim that Venkata Swamy was granted a patta from the Sarfekhas, the petitioner filed a letter dated 24th Azur 1340 Fasli (File No. 12/22 dated 1340 Fasli) written by the Assistant Superintendent, Land Records, Sarfekhas to Venkata Swamy, resident of Gowlipura, Hyderabad informing him that a patta was awarded to him in Survey No. 129/1 for the land known as Kancha Tatti khana and the order is set to the Tahsil Office to enter it into the records. The petitioner also produced the patta granted in favour of Venkata Swamy in respect of an extent of 10 acres in Survey No.129/1/36, Sethwar Mouza Shaikpet showing the revenue tax per acre as Rs.5/-. The patta contains the following conditions.
1. Revenue shall be paid at the rate of Rs.5/- per acre before construction of houses and Rs.10/- after construction of houses.
2. Rs.2-50 ps. shall be paid before construction of houses or at the time of construction.
This followed by sale of land by Venkata Swamy in favour of Papaiah and Papaiah in favour of the petitioner on 1971. After purchase, the petitioner gave the land on lease to Hyderabad Industries Ltd., in 1971. Now the Government in their counter states that Survey Nos. 129/11 to 129/87 were for the first time entered in 1352 Fasli in the Revision Book of Survey and Revenue records. But the alleged patta certificate of Venkata Swamy is of 1340-Fasli when the said sub-divisions were not in existence and as such no patta could have been granted by the Sarfekhas authorities and hence the sale deed in favour of Papaiah is void. It is also stated that Papaiah presented a claim petition in 1969 and the same was rejected by the Government in 1971 and therefore, Papaiah cannot confer any right. Thus while according to the petitioner the predecessor-in-title was granted a patta by the Sarfekhas, the Government says that such a patta could not have been granted. The only reason for their conclusion that the patta could not have been granted is that there were no sub-divisions in 1340 Fasli. To say the least, this is a very slender ground. The property changed several hands from Venkata Swamy to Papaiah and Papaiah to petitioner. In my opinion, there is a genuine dispute between the parties as to whether the property belongs to the Government or to the petitioner. The petitioner has a bona fide claim to litigate and she cannot be evicted except by due process of law. Complicated questions of title cannot be decided in summary proceedings under Section 6. The claim to this land was made as far back as 1969 as Papaiah was claiming title ever since that time. At no point of time was any assessment made under Section 3 of penal assessment under Section 5. Even according to the Government, they took possession only in 1986 i.e., subsequent to the order under Section 6 of the Act. The petitioner contends even that is a paper possession and this Court after hearing both parties granted stay notwithstanding the representation of the Government possession. There were demand notices in 1974, 1975 and 1976 which were complied with by the petitioner. In these circumstances, there is dispute as to title and the summary remedy is not the due process of law for evicting the petitioner.
A somewhat similar question arose in Govt. of A.P. v. T. Krishna Rao (supra) and the Supreme Court held that long possession of the party raised a genuine dispute between them and the Government on question of title and proper remedy is a suit. The Court further observed that duration of occupation is relevant in the sense that a person who is in occupation of the property openly for appreciable length of time can be taken prima facie to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law. According to the Government they have rejected the claim of Papaiah in 1971. Even after that, the Government did not take any steps to take possession nor did they levy any assessment or penal assessment contemplated under Sections 3 and 5 of the Act. From 1971, the petitioner has been in open possession directly and through her M/s. Hyderabad Industries Limited is in occupation of the land as her tenant. The proceedings under the Land Encroachment Act were started for the first time in 1985 by issuance of Notice under Section 6 of the Act. Even then the Government was out of possession for over 14 years not to speak of the earlier period when Papaiah and Venkata Swamy were in possession. The long possession of the petitioner and her predecessors in title raises a genuine dispute and that has to be decided by the Civil Court and the petitioner cannot be evicted summarily. On the second point the learned single Judge has answered as under :
"There is yet another question, which requires serious consideration. It is not in dispute that no notice was given to the petitioner before the impugned order was passed. Notice under Section 7 was issued to the Hyderabad Industries Limited, who is the lessee. Section 7 of the Act is as follows:
Section 7: Before taking proceedings under Section 5 or Section 6, the Collector or Tahsildar or Deputy Tahsildar as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of the land being the property of the Government, a notice specifying the land so occupied and calling on him to show-cause before a certain date why he should not proceeded against under Section 5 or Section 6."
It is seen from this section that before taking proceedings under Section 6 a notice shall be served on the person reputed to be in unauthorized occupation. Admittedly, the Hyderabad Industries Ltd., is in possession as a tenant under a registered lease deed executed by the petitioner and the Government issued the notice under Section 7 treating the property as belonging to it. In such a case, the person who is entitled to notice is the lessor as the Government claiming title. The possession of Hyderabad Industries Ltd., is only that of a lessee. The real person, who is affected, is the petitioner, who is claiming to be the owner. Since the Government is claiming a title to it and seeking dispossession of the person, notice should have been given to the person claiming ownership. It is not as though the Government was not aware of it. Pursuant to the notice given under Section 7, Hyderabad Industries Ltd., sent a detailed explanation stating that they are in possession as lessees of the petitioner under a registered lease deed. Even then no notice was given to the petitioner and summary proceedings were taken against the lessee and an order of eviction was passed against the lessee. Even though Hyderabad Industries Ltd., is in physical possession, the constructive possession is with the petitioner. In the circumstances, the proper person to whom the notice should have been given under Section 7 is the petitioner who claims to be the owner. The order under Section 6 was also directed against Hyderabad Industries Ltd. On this ground also, the proceedings under Sections 6 and 7 are illegal and void.
It was submitted by the learned Additional Advocate-General that the lease being one for 99 years, it is as good as a sale and hence notice to the Hyderabad Industries Ltd., is sufficient compliance of the statutory provisions. Whether the lease is for 99 years or for a lesser period, since the question involved is one of title, principles of natural justice, apart from the statutory provisions require that a notice should be given to the person openly claiming title. The learned single Judge after hearing the rival contentions in the writ petition passed the following order:
"For the aforementioned reasons, I am unable to uphold the validity of the impugned orders. They are accordingly quashed and writ petition is allowed. It is open to the Government to file a suit and get their title established".
The said order of the learned single Judge was confirmed in WA No.742 of 1989, dated 14-9-1995. After hearing the contentions raised by both sides in the writ appeal the Division Bench of this Court held as follows:
"The facts show that the respondent purchased the land through registered sale deed and her vendor purchased the same under registered sale deed from the original pattedar who was alleged to have been granted patta by the Sarfekhas. In view of the contention that the respondent has been in possession of the land since a long time, particularly basing on the registered sale deed and the patta alleged to have been granted by the Sarfekhas, it is not proper to resort to summary proceedings under the Act particularly in view of the judgment of the Supreme Court stated supra. Therefore, the learned single Judge has rightly allowed the writ petition. Hence, we see no grounds to entertain the writ appeal and it is accordingly dismissed. However, the status quo directed to be maintained, will continue for a period three months from today to take appropriate steps by the Government".
12. As there is a serious dispute as to the identity of the property, on the request made by both sides we appointed two practicing advocates of this Court as advocate commissioners to visit the land in dispute along with the officials of the Survey and Settlement Department to cause local inspection of the disputed land and also the other land adjacent to it by an order dated 23-6-2000 and submit the report by 4-7-2000. The Government challenged this order before the Supreme Court and by order dated 14-11-2000 in SCLP No.9925/2000 the Supreme Court passed the following order:
"We refrain from expressing any opinion on the rival contentions, for, present is only an interlocutory order. We dispose of this matter without prejudice to the right of either of the parties to approach this Court on culmination of the proceedings initiated before the High Court. We also make it clear that if the High Court finally passes an order against the petitioner the same will remain in abeyance for a period of 6 weeks therefrom for enabling the petitioner to approach this Court with special leave petition".
13. The Commissioners filed their report and the authorities of the Survey Settlement and Land Records Department also submitted the report. Since both sides filed their objections to the reports of the Advocate-Commissioners and the Survey and Settlement Department, no reliance can be placed on those reports.
14. Reference to earlier proceedings makes it clear that the learned single Judge as well as the Division Bench of this Court took a view that the ordering eviction proceedings without notice to the petitioner is illegal since the land in question is in the name of the petitioner. When a person is in possession of the land continuously and the other records, including the tax receipts etc., show that the land stands in the name of such person, the proper remedy available to the State is to file a separate suit to establish its title. The State has taken a stand to contend that no contempt whatsoever has been committed by the State, because it took possession immediately after the order was passed under the Land Encroachment Act.
15. From the earlier proceedings initiated by the Mandal Revenue Officer, Golconda Mandal by notice dated 14-10-1985 to the Hyderabad Industries Limited, there is a mention as to the situation of the property of Shaikpet village of Banjara Hills with Sy.No.403 part, T.S.No.3/1, Ward 11, Block-5 and described the same as the Government land and that the illegal encroachment is Ac. 14.00 gts. The said notice was followed by another eviction notice dated 20-6-1986 whereunder it was informed that since the lessee is in unauthorised occupation of the land in an extent of Ac.14.00 gts. he is liable to pay assessment under Section 6 of the Act 3 of 1905. It was also informed that failing to pay the assessment the lessee will be evicted. On the same day i.e., 20-6-1986 an order in proceedings No.C/4360/1983 was passed by the Mandal Revenue Officer, which reads as follows:
"Under the circumstances explained above the claim of the company over the extent of Ac.10.00 gts. of land taken on lease from a person, who do not have any title and surrounding land for which no documentary evidence is produced, is rejected and it is ordered that possession of Ac.14.00 for which a notice under Section 7 of APLE Act 3 of 1905 was issued would be resumed after issuing notice under Section 6 of the Act. It is further ordered that Notice under Section 7 of APLE Act be issued for the remaining extent of Ac.5-03 which is a Government land in Sy.No.403 and found to be in the illegal possession of the company".
By Memo No.2917/P1/86-1, dated 16-8-1986 the Government permitted the District Collector to hand over the resumed extent of Ac.14-00 in S.No,403 of Shaikpet village, Golconda Mandal, Hyderabad District as well as the land of Ac.5-03 gts. to be resumed to the Executive Engineer, Roads and Buildings, Central Buildings Division, Hyderabad for utilising an extent of Ac.6-00 of land only for construction of residential accommodation for the Ministers near Birla Guest House on Road No. 12, Banjara Hills, Hyderabad. The Executive Engineer, Roads and Buildings should see that the land handed over is effectively protected from any encroachment, arranging for necessary watch and ward, fencing it up if possible etc. The land over and above Ac.6-00 shall not be utilised for any purpose without the clearance of this Department".
16. It is stated in the counter-affidavit in the contempt case filed by the District Collector that there is huge extent of 1,95,714 square meters of Government land in T.S. No.3/1 old Sy.No.403/Part in Ward No.11, Block "S" of Shaikpet village and in part of the said land, it was proposed to construct Ministers Residential Quarters. The scheme was approved in the year 1986. Accordingly, a foundation stone was laid on 11-12-1986 by the then Chief Minister in a public meeting which was also given vide coverage through media. The Government accorded administrative sanction and released certain sums of money for the construction of residential quarters for the Ministers. It is further stated in the counter-affidavit that a decision was taken by the Government to construct residential quarters for the Ministers in T.S. No.3/1 Part, Block. "S", Ward No. 11 of Shaikpet Village. Referring to the possession it is stated in the counter-affidavit that the Government took possession of the property immediately after eviction order passed under Sections 6 and 7 of the Encroachment Act and later started construction of the quarters after obtaining permission from the Government.
17. Sri Mahmood Ali, learned Counsel for the petitioner submitted that though this Court in WP No.11714 of 1986 quashed the order of the Government dated 14-10-1985 which was confirmed in the writ appeal by the Division Bench of this Court by its judgment dated 14-9-1995 the respondents 1 to 5 in utter violation of those orders permitted the contractors 6 to 9 to undertake construction of residential quarters for ministers. He further submitted that despite the issuance of notices dated 20-11-1999, 23-11-1999 and 26-11-1999 to the respondents enclosing the copies of the judgment of this Court in WP No.11714 of 1988 as confirmed in WA No.42 of 1988 to stop the construction activity over the land in dispute by the petitioner, the respondents are proceeding with the construction work with great speed. He also submitted that the construction work of buildings undertaken by the respondents is in total violation of the orders passed by this Court. Hence, the respondents are guilty of the contempt of this Court. The respondents/contemnors, according to the learned Counsel for the petitioner, are deliberately and wilfully disobeyed the orders of this Court and therefore they are liable to be punished under the Contempt of Courts Act. According to him that from the date of knowledge the contempt proceedings are in time. As to the question whether the High Court in disposing of the contempt application can grant consequential relief such as restoration of possession. Sri Mahmood Ali, learned Counsel for the petitioner placed reliance on a Division Bench judgment of this Court in K Veeraiah v. N. Venkateswarlu, 1986 Crl.LJ 2065, wherein this Court referring to Article 215 of the Constitution of India held as follows:
"There can be no doubt that the object underlying the Contempt of Courts Act is to uphold the majesty and dignity of the Law Courts and their image in the minds of the public. Article 215 vests in a High Court all the powers of a Court of Record including the power to punish for contempt. The words "powers to punish for contempt" do not limit the other powers of the High Court as it possesses as a Court of Record. The Contempt of Courts Act is meant for limiting the powers of Courts in punishing and to regulate the procedure and in addition it expressly confers upon the High Court power to commit for contempt of subordinate Courts also. But under Article 215, the powers of a High Court, as a Court of Record are wide enough to give appropriate direction "to close the breach" which is a result of interference with the due course of justice committed by contemnors. The learned Advocate-General has fairly submitted that the High Court while exercising this inherent jurisdiction can give suitable directions by way of an order with a view to undo the mischief caused by the act of contempt committed by the contemnors".
It further held as follows:
"In this view of the matter, he ordered the restoration of the land to the respondents, as the justice of the case requires so. After careful examination of the facts and circumstances of the case, we see no grounds to disagree with this finding of the learned Judge. We may also add that the issuance of pattas again is after taking possession of the land, which is in utter disobedience of the orders of this Court, and the same has resulted in hampering the administration of law and interfered with the due course of justice. Therefore, the pattas cannot have any sanctity and consequently the merely issuance of pattas in this case cannot be given undue weight and the same cannot come in the way of this Court from passing an order of restoration in the interests of justice."
18. On the other hand, the learned Advocate-General appearing for the State in the first limb of his arguments submitted that Hyderabad Industries Ltd., rightly or wrongly continues to be in possession of the land of which it was in possession when the writ petition was allowed and therefore the contempt case is misconceived. He further submited that even though Hyderabad Industries Ltd., is in possession of the land on the basis of lease for 99 years, the learned single Judge proceeded on the premise that notice should have been given to the original owner and allowed the writ petition on the ground that the lessee received notice under the Land Encroachment Act and that it is not appropriate to take recourse to the Land Encroachment Act. The effect of allowing the writ petition is that the impugned order directing eviction of the petitioner is held as bad. He also submitted that there is no controversy about the occupation of the land by Hyderabad Industries Ltd., and it is in possession of the land as on today. In the Commissioners' report also it is stated that Hyderabad Industries Ltd., is in possession of the land and there is no confusion with that land or any other land.
19. The learned Advocate-General referring to the judgment of the Division Bench in the writ appeal submitted that the direction was to maintain status quo for a period of three months and which came to an end by 14-12-1995, as such there is no violation of the orders of this Court by the respondents-contemnors. Further the direction in the writ petition is not against the Government, but only against the Mandal Revenue Officer and as such the question of disobeying the orders of this Court by the respondents other than the Mandal Revenue Officer does not arise. He argued that in the affidavit filed in the present contempt case, the petitioner has made a blatant lie for which she should be punished.
20. On the question of maintainability of contempt case, the learned Advocate-General submitted that when contempt is alleged, only the officers who were parties to the writ petition are bound to obey any direction. If anybody else is impleaded, they would be in the nature of abettors or persons who have intermeddled with the order. The direction if at all existed is against the Mandal Revenue Officer, but not against the other Officers who were not at all parties to the proceedings even though they are brought on record as respondents by impleadment. He also contended that it is not for the learned single Judge to examine any title with regard to the property.
21. The point that arises for consideration in these proceedings is whether the respondents have committed any act of contempt by showing disobedience of the orders of this Court and whether the contempt proceedings initiated are barred by time.
22. It is to be seen that this Court in WP No.11714 of 1986 made a categorical observation that it is open for the Government to institute a suit and get their title established in a Civil Court, which was confirmed by the Division Bench in WANo.742 of 1995 and ordered status quo for a period of three months from the date of the judgment for taking appropriate steps by the Government. The said three months time expired by 14-12-1995. The important thing that is to be noted is that the initiation of criminal proceedings suggests that as on the date of final order passed by the Mandal Revenue Officer the Government was not in possession of the property in question. Admittedly the petitioner through her lessee was in possession of the property. The writ petition was filed before this Court on 1-9-1986. The writ petition was admitted and interim stay was granted on 2-9-1986, which was made absolute in WVMP No.15310 of 1986 on 18-4-1988. Mere passing a final order of eviction shall not be construed as the person in occupation has been dispossessed. Any dispossession shall be under a panchanama. No material whatsoever is placed before the Court to show that possession from the lessee of the land in question was taken over by the Government under a panchanama except mentioning that the said possession was taken in the presence of some of the employees of the Hyderabad Industries Ltd. The respondents' case is that they took possession on 24-6-1986 and the same was handed over to the Public Works Department for construction of houses on 28-8-1986. Whereas this Court by order dated 18-4-1988 made the interim stay absolute. The Division Bench in the writ appeal did not propose to interfere with the interim orders of stay granted by the learned single Judge. Whether the respondents took possession of the property on 24-6-1986 or subsequent to that is immaterial since we are now concerned with the disobedience of the respondents of the orders of both the learned single Judge and the Division Bench of this Court by the respondents.
23. This Court directed the Government to institute a suit before the civil Court to establish their title over the land in dispute. Though final orders in the writ appeal was passed by the Division Bench till the month of August, 1999 no steps were taken by the Government for initiation of civil proceedings. The case of the petitioner is that as soon as she came to know the fact of proceeding with the construction by the respondents over the land in question she issued telegraphic notices on 20-11-1999 and 23-11-1999 and a registered legal notice was issued on 26-11-1999 calling upon the respondents to stop the construction work over the land. As the respondents did not stop the construction work over the land disobeying the orders of this Court the petitioner filed the contempt case. Thus from the date of knowledge the contempt petition is in time. As a counter blast to the contempt case the State initiated proceedings against the petitioner under Section 8 of the Land Grabbing Act in December, 1999 alleging that the land in question, which is in occupation of the petitioner, is Government land. It is mentioned in the said application that the cause of action arose on 26-11-1979. Strangely, in the said LGC nowhere it is mentioned that the petitioner has grabbed the land.
24. The Division Bench directed the respondents while confirming the orders passed by the learned single Judge that status quo will be continued for a period of three months from the date of the order to take steps by the Government. But the Government till 27-12-1999 took no steps. From this it is clear that the authorities started construction even subsequent to the orders passed by this Court in the writ petition without approaching the civil Court for the relief of declaration of its title. This act of the respondents amply proves that there was deliberate and wilful act of disobedience of the orders of this Court by the Mandal Revenue Officer and also by the other superior authorities and as such they committed the contempt of Court.
25. In Halsbury's Laws of England (Fourth Edition, Volume 9) Chapter 'Civil Contempt' a passage in para 104 dealing with the subject of 'other remedies' read thus:
'The Court may, in its own discretion grant an injunction, in lieu of committal or sequestration, to restrain the commission or repetition of a civil contempt. The Court may in lieu of any other penalty require the contemnor to pay the costs of the motion on a common fund basis.
In a doubtful case, the Court may instead of proceeding for contempt grant on order requiring the defendant to state whether he has complied with an undertaking.
If an order of mandamus, a mandatory order, injunction or judgment or order for the specific performance of a contract is not complied with, the Court may besides or instead of proceeding for contempt, direct the act to be done by some person appointed for that purpose".
26. From this passage it becomes clear that the Court can, by way of relief, give certain other directions also in a contempt application with a view to help the administration of justice.
27. Viewed from any angle the respondents clearly disobeyed the orders of this Court and they committed contempt of Court. It is no doubt true that construction over the land in question has been taken place. But, what is the relief that has to be granted to the petitioner? No purpose would be served to the petitioner if there is a direction to hand over vacant possession of the property of the petitioner. The order of demolition of the buildings so constructed over the land in question and restituting the said land to the petitioner would cause great hardship to the respondents.
28. To put an end to the litigation once for all and since the respondents have already made constructions over the land in question by flouting the orders passed by this Court and no purpose will be served if the respondents are directed to be punished as some of them as on today either transferred or retired from service, we feel it appropriate to direct the respondents-authorities to pay compensation to the petitioner in the contempt case at the rate of Rs.5,000/- per sq.yard as valued by the State itself in the application filed under Section 8 of the A.P. Land Grabbing (Prohibition) Act and numbered as LGC No.25 of 2000 or any other reasonable amount in lieu of directing the respondents to redeliver possession of the land in question to the petitioner, in case the proceedings in LGC No.25 of 2000 go in favour of the petitioner. The question of maintainability, jurisdiction, propriety or competency to continue the case in LGC No.25 of 2000 in view of the earlier proceedings and observations made therein as to possession, whether adverse, permissive or unauthorised and title made therein including the directions to institute a civil suit to adjudicate the title to the property is kept open to be considered by the Special Court. However, implementation of this order is stayed for a period of six week from today.
Subject to the observations indicated above, the contempt case and the contempt applications are closed. There shall be no order as to costs.