Andhra HC (Pre-Telangana)
District Collector, Hyderabad And ... vs N. Krishna Mohan And Others on 3 April, 2000
Equivalent citations: 2000(4)ALD126, 2000(3)ALT525
Author: Vaman Rao
Bench: Vaman Rao
ORDER N.Y. Hanumanthappa, J.
1. The State filed this appeal challenging the order of the learned single Judge of this Court passed in WP No.10159 of 1998, dated 30-10-1998 quashing the order passed by the District Collector, Hyderabad, in Memo No. 11/7626/97, dated 20-104997 refusing to issue No Objection Certificate in respect of the site bearing MCII No.8-2-470/1 to 5, 6A and 7 to 12 situated in Road No.1, Banjara Hills, Hyderabad on the ground that the said land is a Government land.
2. The parties in this appeal are referred as they were arrayed in the writ petition.
3. A few facts which are necessary to dispose of this appeal are as follows: S.Nos.116/2 and 116/3 measuring to an extent of Ac.3.27 guntas situated at Khairatabad village, Hyderabad district originally belonged to the then Nizam. It was his private property (Surfekhas). After corning into force of the Surfekhas Merger Regulations 1359 F, all the private properties of Nizam were merged with the Government in the year 1949. One Smt. Rabia Begum, w/o Nawab Dastagir Nawaz Jung had acquired the said land who in turn sold the same to Smt. Pramila Modi under a registered sale deed dated 1st Farvardi 1355 F. In turn Smt. Pramila Modi sold the said land to the petitioners in the years 1991 and 1992. The land so purchased by the predecessor of the petitioners, namely Smt. Pramila Modi was mutated in the revenue and survey records in her favour as per the orders of the 1 st respondent-District Collector, Hyderabad, and orders were passed directing the concerned to mutate her name by issuing a supplementary sethwar (survey records). In letter No.2615, dated 23rd Mehar 1353 F in Surfekhas Secretariat File No.99/45 of 1356 F, S. No.1 16 was sub-divided into S. Nos.116/1 and 116/2. S. No.116/2 is shown in the name of the petitioners. By subsequent supplementary Sethwar issued in letter No.352 dated 1st Khurdad 1357 F, S. No.1 16/2 was sub-divided into S. Nos. 116/2 and 116/3. A plan was also prepared to give effect to the order passed by the District Collector. When the dispute started to implement the orders of the Collector, the matter was placed before the Director of Settlement, Survey and Land Records (for short 'Director of Settlements'), and Board of Revenue, Hyderabad. The Director of Settlements by his order dated 29-5-1964 while upholding the previous orders of the Nizam Government directed that steps be taken to get the survey records prepared and implemented. Challenging the same, the objectors filed Appeal No.U2/1237/64 before the then Board of Revenue. The Board of Revenue by its order dated 24-4-1965 confirming the orders of the Director of Settlements observed that Mrs. Modi is entitled to get her name mutated to the extent of Ac.3.27 guntas in S. Nos.116/2 and 116/3 as per the plan approved by the Surfekhas Secretariat and included in File No.99/45 of F. 1356 which shall include the land covered by two sale deeds already executed by her in 1357 F.
4. The said order was challenged by the Objectors before the Government and the Government by its order in Memo No.1547-Rl/65-27, dated 3-12-1968 upheld the earlier orders of the Director of Settlements and the Board of Revenue and rejected the application of the Objectors. Thus, according to the petitioners the dispute as to the title of Pramila Modi was concluded in respect of S. Nos.116/2 and 116/3 to an extent of Ac.3.27 guntas of Khairatabad village and only thing which was left over was to implement the same in survey records. As the authorities concerned did not implement the orders referred to above, Smt. Pramila Modi filed WP No.4526 of 1975 before this Court seeking a direction to the authorities concerned to implement the orders of the Board of Revenue dated 24-4-1965 and the Government dated 3-12-1968 in respect of S.Nos.116/2 and 116/3. In WP MP No.6897 of 1975 filed along with the above writ petition, this Court passed an interim direction to implement the earlier orders of the authorities. As the same was not complied with, a contempt petition was filed which was disposed of by this Court with the following observation:
"In view of the above categorical statement made in the counter-affidavit that the direction with regard to mutation will be implemented in the forthcoming Jamabandi and also in view of the fact that the main writ petition has been disposed of, we see no contempt committed by the respondent."
5. Later during the survey operations of 1965-79, to the surprise of the petitioners, the land in question was shown as Government land which was in violation of the earlier orders of the Government dated 3-12-1968 and prior to that also the order of this Court in WP No.4526 of 1975. The Mandal Revenue Officer issued a notice of eviction by exercising powers conferred under the Land Encroachment Act. When the matter was brought to the notice of the Joint Collector, about the eviction notice issued by the MRO and the earlier orders of the authorities, he set aside the proceedings of the MRO dated 28-8-1993 and held that S. Nos.116/2 and 116/3 measuring to an extent of Ac.3.27 guntas is a patta land of Pramila Modi. The Joint Collector further directed the petitioner to approach the Collector. He submitted a representation to the Commissioner of Survey and Settlements who in turn passed an order on 12-5-1994 to correct the town survey records. Thus on second round also, it is stated the claim of the petitioners was confirmed. Pursuant to the order dated 12-5-1994, the petitioners approached the 2nd respondent-Municipal Corporation of Hyderabad for permission to construct the building which in turn directed the petitioners to obtain No Objection Certificate from the 1st respondent-District Collector. The 1st respondent instead of granting No Objection Certificate issued Memo No. 11/7627/97, dated 29-10-1997 rejecting the petitioners' request on the ground that it was found that their predecessor-in-intercst purchased the land in S. Nos.115/2 and 3 but claimed title in S.No.1 16/2 which is a Government poramboke land. The 1st respondent further observed that the order of the Commissioner, Survey and Settlements and land Record dated 12-5-1994 is contrary to the provisions of A.P. Survey and Boundaries Act, 1923 (for short 'Act 1923') as the Commissioner has no power to correct such entries. When once it is notified under Section 13 of the Act, 1923 that a particular property is the Government property only way for its correction is by way of filing the suit under Section 14 of the Act, 1923. Aggrieved by the said order of the ! st respondent-Collector, the petitioners filed the writ petition contending that the order of the Collector is without jurisdiction. Secondly, the 1st respondent passed the order without noticing that on all the occasions, the competent authorities recognised the title of Pramila Modi and subsequently the petitioners. Refusing to grant No Objection Certificate amounts to circumventing the earlier orders of this Court both on writ side and in the contempt proceedings. When the title was settled finally on 29-5-1964 by the order of the Government, it is not open for the 1st respondent-Collector to reject the same nearly after 30 years. There is no need for the petitioner to obtain No Objection Certificate. But they had approached the 1st respondent to comply with the directions of the 2nd respondent-Municipality. The request of the petitioner was only to rectify the mistake if any and bring the same in conformity with the orders of the authorities. To rectify the mistake the competent authority in 1964 passed orders directing the concerned to carry out corrections. The petitioners also contended that the impugned order is quite illegal and arbitrary.
6. On service of notice the 1st respondent filed counter denying the averments made by the petitioners. According to the Government, S. No.116 was originally Ac.52.34 guntas. It was recorded as Poramboke land. Smt. Pramila Modi purchased Ac.4.25 guntas in S. No. 115/2 of Khairatabad village situated in Road No.1, Banjarahills in the year 1945 from Smt. Rabia Begum. During the year 1965-70, town survey operations were taken up as per the provisions of Act, 1923. Smt. Pramila Modi though had purchased the land in S. No.115/2 of Khairatabad village, a supplementary sethwar was issued for the land in S. No.116. The said sethwar was issued in a mistaken impression without properly verifying the fact as to the purchase. The said supplementary sethwar was issued in 1361-F, but the same was not implemented and the land continued to be a Government land in revenue records. During 1965 to 1970 survey was held as required under the provisions of Act, 1923. A notice under Section 9(2) was issued to all the registered holders including the registered holder of S. No.115 and 116. After completion of enquiry, a Notification was issued on 25-9-1976. If anybody is aggrieved by the Notification he shall challenge the same by filing a suit within three years as required under the Act 1923. As no suit was filed seeking cancellation of the Notification neither Pramila Modi nor her successors-in-interest have any right to seek for No Objection Certificate. The order of Ihe Joint Collector dated 28-8-1993 is without authority of law as he proceeded to give a finding on title. The respondent referred to other proceedings that are not in dispute including sub-dividing of S. Nos.116/2 and 116/3. The request made by the petitioners for issuing No Objection Certificate for change of land use from residential to commercial use was not required to be considered as the order of the Commissioner or the Government is not binding on the 1st respondent. The petitioners or their predecessor-in-interest have got title over S. Nos.1 15/2 and 115/3 and not in S. Nos.1 16/2 and 116/3. Mere issue of supplementary sethwar in respect of S. Nos.116/2 and 116/3 does not confer any right or title in Pramila Modi or her successors-in-interest. S. No.116 measuring Ac.52.34 guntas is the Government Poramboke land. Surfekhas authorities might have issued the supplementary sethwar without verifying the documents which show the transaction took place in S. No.1 15 but not in S. No. 116. When the Government is the absolute owner of S. No.116 of Khairatabad village the orders passed by any authorities conferring any title on the petitioners or their predecessor-in-interest, are not finality in themselves. The respondent admits the earlier orders of the Government and this Court. It is further averred that the land in S. Nos.115 and 116 was not considered by any of the authorities. The respondent also took a stand that when there is serious dispute of facts, the same cannot be gone into under Article 126 of the Constitution of India. The further case of the respondent is that the land in question was notified as Government land by exercising powers under the provisions of Act, 1923. Any person aggrieved by such notification has to file a suit within three years seeking cancellation of Notification. As the land in question is a Government land, the MRO was right in issuing eviction notice under the provisions of A.P. Land Encroachment Act, 1905. The directions of the authorities for correction of entries in the town survey register in favour of Pramila Modi is contrary to the provisions of Act, 1923. It was also contended that the order will not have force of law. The memo dated 29-10-1997 was issued by the 1st respondent-Collector only after satisfying that the land in question is the Government poramboke land and hence the request of the petitioner does not deserve to be considered. The respondent finally submitted that there is no merit in any of the contentions of the petitioners.
7. In support of their contentions raised in the affidavit and counter-affidavit, both parties advanced their arguments before the learned single Judge.
8. The learned single Judge found that the stand taken by the 1st respondent to reject the petitioners' request for issuance of No Objection Certificate is quite incorrect. The claim of Smt. Pramila Modi in respect of the land in question was accepted long ago. A declaration in respect of S. Nos. 116/2 and 116/3 was fifed before the Special Officer-cum-Competent Authority. The learned single Judge took into consideration the earlier orders of the Director of Settlements, Board of Revenue and Commissioner of Survey, Settlement and Land Records including the orders of this Court on writ side and contempt side and found that there is no merit in any one of the contentions raised by the respondent. He found that the Commissioner of Survey, Settlement and Land Records in his order dated 12-5-1994 found that the land in question is prima facie a patta land. The learned single Judge did not agree with the stand taken by the State that when a Notification was issued under Section 10 of the Act, 1923 it binds the petitioners for the reason that before publication of Notification the nature of the land was already declared by the Director of Settlements, Board of Revenue and the Government had accepted Smt. Pramila Modi's title to an extent of Ac.3.27 guntas in S. Nos. 116/2 and 116/3. As such the subsequent survey will not divest the right already accrued to the parties. Secondly when the authorities having made a statement in the counter filed in contempt proceedings that during the next Jamabandi the order regarding mutation will be implemented, it is not open for them to take a diametrically opposite stand. The order of the Joint Collector dated 28-6-1993 became final and the same cannot be reviewed by the Collector as he has no review powers. For the proposition whether the Board of Revenue or other revenue authorities can review their orders, the learned single Judge took into consideration the principles laid down by the Division Bench of this Court in the case of Venkanna v. State of A.P., AIR 1964 AP 488, wherein their Lordships held that any revision amounts to an illegality. The learned single Judge also referred to another decision of this Court rendered in the case of Y. Bheemappa and others v. The Commissioner of Land Revenue, A.P. and others, 1983 (1) ALT 77 (NRC), wherein similar view was taken.
9. Thus observing, the learned single Judge allowed the writ petition directing the Collector of issue No Objection Certificate in terms of the order passed by the Board of Revenue on 24-4-1965 and the memo of the Government dated 3-12-1968.
10. The learned Advocate General tried to support the order of the 1st respondent-Collector contending that there is no illegality or irregularity in the order of the Collector. According to him, the learned single Judge without taking into consideration the factual position, set aside the impugned order which is quite incorrect. He further contended that the learned single Judge should not have attached much importance to the earlier orders of the authorities including the orders passed by this Court in the writ petition and the contempt case. He also contended that the facts narrated by the petitioners are disputed questions and as such, Article 226 is not the appropriate forum to decide the same. After survey was conducted throughout the State, it was found that S. No.116/2 is a Government poramboke. The same was notified in the Gazette under Section 13 of the Act, 1923. If the petitioners are aggrieved by such notification they should have challenged the same before the competent civil Court by way of filing a suit within three years as contemplated under the Act, 1923. According to the learned Advocate General, the findings and the observations of the 1st respondent-Collector is quite just. He also contended that the writ petitioners keeping silent for several years approached this Court in the year 1998. Thus arguing, he sought the appeal be allowed.
11. As an answer to this, Sri N. Subba Reddy, learned Counsel appearing for the petitioners contended that there is no merit in any of the contentions raised by the learned Advocate General. According to him, the order of the 1st respondent-Collector is illegal and without jurisdiction. The 2nd respondent should not have asked the petitioners to obtain No Objection Certificate. The claim of Smt. Pramila Modi was recognised by the Director of Settlements in his order dated 29-5-1964 which was confirmed by the Board of Revenue in its order dated 24-4-1965 and later by the Government in its Memo dated 3-12-1968. Sri Subha Reddy took us through the original nature of the land and how it was changed in many hands. According to him, the entries made in the revenue records will have a presumptive value. He also contended that the stand taken by the State is contrary to the law laid down by the Supreme Court in Ameer-un-Nissa Begum v. Mahboob Begum, and Jagannatha Rao v. Commissioner of Income Tax, Hyderabad, . Thus contending, he sought the appeal be dismissed.
12. It is proper to refer here that the Director of Settlements, Survey and Land Records on appeal filed by the Hindu Shmasan Committee against Smt. Pramila Modi, passed an order dated 29-5-1964 regarding an error in survey number in respect of the land held by Smt. Pramila Modi whereby the contentions of Smt. Pramila Modi were upheld against which an appeal was preferred before the Board of Revenue by the said Committee in Appeal No.U2/1237/64. In the appeal it was contended that Smt. Pramila Modi has no claim whatsoever over S. No.116 or any part thereof on the ground that her registered sale deed was in respect of S. No.115/2. On the other hand, the said S. No. claimed by Smt. Pramila Modi is covered by a burial ground. The Board of Revenue in its order referred to the registered sale deeds, boundaries, survey numbers and the claim made by Smt. Pramila Modi and the Hindu Shmasan Committee. It also referred to the Supplementary Sethwar issued on 23rd Mehar 1355 F which showed the extent of land bearing S. No. 116 as Ac.52.34 guntas which was sub-divided into S. Nos.116/1 measuring an extent of Ac.49.07 guntas and S. No.1 16/2 measuring an extent of Ac.3.27 guntas. The appeal filed by the Hindu Shmasan Committee was opposed by Smt. Pramila Modi. While considering the contentions of both sides, the Board ultimately upheld the claim of Smt. Pramila Modi. The relevant portion is extracted herein:
"At the outset, it should be remembered that the petitioner viz., Mrs. C.L. Modi applied to the Collector (Land Records) for demarcation of S. No. 115/2 and 115/3 to the extent of Acs.3.37 guntas and filed a copy of the pahani patral of the village. Subsequently she corrected her first application saying that the area of this S. No. comes to Acs.5.25 guntas and not Acs.3.37 guntas. With this application she filed a copy of the registered sale deed and a plan also. According to the true copy of registered sale deed which has been filed by the appellant in the Board during the appeal proceedings. The sale covers only Acs.4.25 guntas in S. No. 115/2 measuring Acs.5.25 guntas. The plan attached to the sale deed reveals that a certain area (about 1 acre) within this S. No. has been excluded from the sale. Evidently the petitioner Smt. Modi is not herself sure of the area to be claimed. In the first instance she claimed an area of Ac.3.37 guntas in S. Nos.115/2 and 115/3 as per the copy of the pahani patrak. Subsequently she corrected claiming the entire extent of S. No. Acs.5.25 guntas although as per sale deed she had purchased Acs.1.35 guntas only and finally she also relies on the Sarfekhas authorities decision allowing only Ac.3.27 guntas in S. No. 116/2 to her.
With regard to the issue No.(1), it is difficult to reconcile the claim of Smt. Modi on the basis of the sale deed which entitled her to Ac.4.25 guntas in S. Nos.115/2 and 115/3 whereas she is now in possession of a certain portion in Government land in S. No.1 16. A perusal of the Sarfekhas file No.99/45 of 1356 F shows that this discrepancy was enquired into in 1355 F. - 56 F. when it was resolved after careful scrutiny of the Survey and Settlement records by the Sadar-ul-Maham Sarfekhas and a supplementary setwar was issued basing on those orders through Sarfekhas Secretariat; letter No.352 of 1st Khurdad F. 1357 which allocates the extent to which Smt. Pramila Modi was held to be entitled as per long possession. From this Sarfekhas file it is evident that the patta in the name of one Rabia Begum in S. No.1 15/2 was fictitious and fraudulent. Actually while entering the name of Rabia Begum against the S. No. 115/2 and 115/3 in the village record, actual possession appears to have been given to her in S. No.116 which is Government Poramboke land, and presumably assignment in this poramboke land was prohibited. This Rabia Begum effected the transfer of the land in S. No.1 16 in favour of Smt. C.L. Modi showing it as in S. No.115/2 and gave possession accordingly on the land. The dispute was finally received by the issue of supplementary setwar in F. 1357 by which Acs.3.27 guntas out of S. No. 116 was allowed to be entitled in the name of Mrs. Pramila Bai Modi and a map was also issued accordingly to the Superintendent of Survey to effect the necessary entries in the Survey record. This correction in survey and village record does not appear to have been effected which has now resulted in all this confusion and dispute. Hence though the claim of Smt. C.L Modi is on the basis of a sale deed in respect of an extent of Acs.4.35 guntas in S. No.115/2, this cannot be demarcated by the Revenue authorities as there is no land in S. No.115/2 to be demarcated which corresponds to her possession. It is very doubtful therefore whether the claim of Smt. Modi on the basis of sale deed to get the land demarcated in S. No.1 15/2 can be maintainable, even there is no land in S. No.115/2 to be given to her. Since, however the competent serfekhas authority i.e., the Serfekhas Minister after going through the record and after due enquiries decided finally that the name of Smt. Pramila Modi be entered in the Setwar against Acs.3.21 guntas in S.No.116, it is but proper that this decision be implemented. The record of the Sarfekhas Secretariat in file No.99/45 of F. 1356 contains the finally approved plan of S. Nos.116/2 and 116/3 measuring Acs.3.27 guntas and also showing the areas which should be left out. There should be no difficulty in demarcating the land of Smt. Modi as per this plan. A copy of this plan should be communicated by the Director of Settlements to the Collector (Land Records) for the purpose of demarcating the boundaries. As such I find myself in agreement with the conclusion arrived at by the Director of Settlements in respect of the extent of land in S. No.116 to which Smt. Modi is entitled. As recards the claim of Smt. Modi to a lager extent on the basis of the sale deed it cannot be accepted because the sale deed pertains to S. No.115/2 in which there is no land and the order of the Serfekhas authorities entering her name against S. No.116 was itself by way of resolving a dispute.
During the course of the appeal proceedings it was disclosed by the appellant that the respondent has through two registered sale deeds in F. 1357 effected transfer of 3.600 sq. yards and 7.600 square yards totalling an extent of 11.200 square yards to two parties out of the same S. No.116/2 and 115. From these documents it would appear that in F. No.1357 itself she was aware of the decision of the Serfekhas Secretariat that she had Ac.3.27 guntas in S. No.1 16/2. It is therefore evident that she can get Acs.3.27 guntas in S. No.116/2. It is, therefore, evident that she can get Acs.3.27 guntas in S. No.1 16/2 and 116/3 which will include the land which she has already disposed of in favour of 2 parties by registered sale deeds in F. 1357. If she has got possession over and above this Acs.3.27 guntas, that shall be deemed to be illegal encroachment on Government land and liable to be evicted.
(1) The appeal is therefore allowed partially with the above observations. In short Mrs. Modi is entitled to get her land demarcated to the extent of Acs.3.27 guntas in S. Nos.116/2 and 116/3 as per the plan approved by the Serfekhas Secretariat and included in the file No.99/45 of F. 1356 which shall include the land covered by two sale deeds already executed by her in 1357 F. (2) The grave yard, temple etc., which have been ear-marked in the above stated plan shall be properly demarcated on the site.
(3) If Smt. Modi has got possession over any extent above Acs.3.27 guntas, it shall be deemed to be illegal and she shall be evicted under law by the Revenue authorities."
The said order was confirmed by the Government in its proceedings Memo No.1 547-R1/65-27, dated 3-12-1968 rejecting the Revision filed by the Hindu Smasan Committee observing as follows:
"The petitioner is informed that the Government see no reason to interfere in the matter. The petition cited is therefore rejected."
13. The claim of the petitioners is that they purchased the land from Smt. Pramila Modi who inturn purchased the land from Smt. Rabia Begum. Orders were passed by the higher revenue authorities to carryout necessary mutation in favour of the petitioners. But, no satisfactory reasons have been given for not carrying out those orders. In fact, this refusal smacks of disobedience of the orders of superior authorities which were passed long ago. When all the authorities found that the petitioners are entitled for the relief, the order of the 1st respondent-Collector amounts to sitting over the earlier orders which is without any authority of law. The Collector should have noticed that on both the rounds, the competent authority had accepted the petitioners' right and directed the orders to be implemented. The 1 st respondent-Collector filed counter in contempt proceedings submitting that they are going to implement the orders of this Court and other authorities in the forthcoming Jamabandi. But, nothing has since changed to take a different attitude subsequently. The contention of the District Collector that the result of Survey was announced under the Survey and Settlement Act and notified, thus became final and if any aggrieved person wants to challenge the same, it can be only by way of suit within three years from the date of notification, would have been tenable if it was proved that the aggrieved person had notice during such survey. In this case, there is no material before the Court whether such a notice was given to the petitioners. If the aulhorities feel that the land in respect of which the mutation was sought and No Objection Certificate was requested, is a Government land, it is open for them to initiate appropriate proceedings against the persons concerned for establishing Government's title and to seek eviction of persons in possession. But, the Collector cannot act as an ultimate arbiter and resort to ignoring the earlier orders of his superior authorities. The 1st respondent-Collector should have noticed that in the year 1964 itself, the rights of the petitioner were recognised by the Government authorities. For the Collector to act on his own in derogation of the previous orders nearly after 33 years amounts to arbitrariness on his part and such an approach is impermissible in the eye of law. The reliance placed by Sri N. Subba Reddy, the learned Counsel appearing for the petitioners on the decisions in Ameer-un-Nissa Begum's case (supra) and Jagannatha Rao's case (supra), support the case of the petitioners.
14. Whether the correctness or otherwise of the patta granted can be gone into by the Government after a long lapse of time, the Division Bench of this Court in the case of T. Surya Rao v. Dr. G. Ramakrishna Rao, (DB), held 'no'. The relevant observation is extracted herein:
"The contention of Sri Poornaiah, learned Counsel for the petitioner, that under Section 11 of the Estates Abolition Act, which concerns grant of Ryotwari patta. no patta can be granted in respect of any land recorded as Government land in the revenue records, in our view, cannot be gone into in these writ petitions. The petitioner was not a rival claimant for the land in question before the statutory authorities nor any evidence was brought on record as to the circumstances under which patta was granted in respect of Survey No.539 in favour of Dr. Perraju, the vendor of the first respondent. The grant of patta was as far back as 1950. The revenue authorities, it must be presumed, must have taken into consideration all the relevant facts and circumstances for registering the name of Dr. Perraju as the pattedar in respect of S. No.539 on 8-9-1950. The document Ex.A17, which describes the land as Government dry also is the very same document under which patta was also granted to Dr. Perraju. Four decades later at the instance of the petitioner, this question cannot be gone into. Even the Government would not have been in a position to dispute the patta granted in favour of Dr. Perraju at this distance of time, since it was barred by limitation."
15. In the case of Commissioner of Survey, Settlement and Land Records v. G. Padmavathi, (DB), the Division Bench of this Court took a similar view as above. The relevant portion is extracted hereunder:
"The acts of the authorities in initiating the proceedings against the petitioners herein to revise the earlier orders of mutation, if viewed in the light of the facts narrated above, has to be held as illegal. It was contended by the respondents that the petitioners have challenged the notice and not an order. But the narration of facts and circumstances under which the respondents have chosen to take action against the petitioners in respect of the land in question ciearly establish that their initiation of proceedings suggests that the authorities are pre-determined and their main idea is to unsettle the things which were settled long ago. Thus, the said initiation of proceedings is without an authority of law and abuse of powers. Under such circumstances, this Court exercising its powers under Article 226 of the Constitution of India can mound the relief and pass appropriate orders to do justice.
The petitioners and earlier to them their predecessors-in-title after purchasing the land in question were put in possession of the same and have been enjoying the said land. If the authorities found that the land in question is not a private land but belonging to the Government they should have resorted to civil proceedings. This Court in several writ petitions filed by the petitioners, after hearing both sides and considering the records produced, held that the petitioners are the owners of S No.129/10 (New S. No.403) to an extent of Ac.8.00.
When it is found that the petitioners are in possession of the land in question in the capacity of owners and perfected their title, initiation of proceedings either under the Land Encroachment Act or under the Land Grabbing (Prohibition) Act, is not warranted because initiation of proceedings under the said provisions is not sustainable unless it is established that the petitioners are in possession of the land as encroachers or they have unauthorisedly grabbed the land. But the same is absent in the case of the writ petitioners. Under these circumstances, initiation of any proceedings against the petitioners under the Land Encroachment Act, or Land Grabbing Act, has to be observed as illegal, arbitrary and mala fide. Such initiation of proceedings is only with an intention to harass the petitioners.
Exercising suo motu revision or review challenged in the writ petition is unwarranted and the same is mala fide, unreasonable and illegal. Further when the Court comes to know that some illegality has been crept in the orders or proceedings initiated by the authorities without jurisdiction, the Court without hesitation shall step in to render justice and avoid multiplicity of the proceedings by exercising its jurisdiction under Article 226 of the Constitution of India."
For the purpose of this case, it is sufficient to note that when once the petitioners established their possession and enjoyment of the land in question, the 2nd respondent-MCH should have granted permission in favour of the petitioners for construction of buildings instead of driving them to 1st respondent-Collector to obtain No Objection Certificate. Obtaining of No Objection Certificate arises only when any law presupposes. Mere circular or an executive order informing the petitioners to obtain No Objection Certificate before asking for conversion of land etc., have no legal sanctity, because there is no such statutory provision which compells the MCH to insist a person seeking permission to construct a building to obtain and produce No Objection Certificate from the Collector. The 2nd respondent when directed the petitioners to obtain No Objection Certificate, failed to exercise its power conferred on it. Earlier orders passed by the Director of Settlements, Board of Revenue and also the Commissioner of Survey, Settlement and Land Record should not have been lightly brushed aside by the District Collector. Further he has no appellate powers to comment upon the correctness of the orders passed by the other authorities. He is not a civil Court to give a finding on the title to the property. If he had doubted the petitioners' title to the property, nothing prevented him to initiate proceedings before appropriate forum. The act of the District Collector refusing to issue No Objection Certificate to the petitioners is quite arbitrary and illegal. The learned single Judge rightly quashed the orders of the District Collector. We do not see any illegality in the impugned order. The appeal fails and it is liable to be dismissed.
16. Accordingly, the appeal is dismissed. There shall be no order as to costs.