Andhra Pradesh High Court - Amravati
Secy., Rev. Dept. 4 Ors. vs Manepalli Harinarayana Murthy 2 Ors. on 18 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
WRIT APPEAL No.531 of 2015
JUDGMENT:(per the Hon'ble Acting Chief Justice C.Praveen Kumar) Challenging the order of the learned Single Judge in W.P.No.31582 of 2012, the present Writ Appeal is filed under Clause 15 of Letters Patent by the State of Andhra Pradesh, represented by its Secretary, Revenue (ASSN.II) Department, Secretariat, Hyderabad.
2. Questioning the action of the 1st respondent i.e., Government of Andhra Pradesh in Memo. No.43387/Assn.II(2)/2011-2, dated 24.5.2012 permitting the 3rd respondent therein i.e., the District Collector, Krishna at Machilipatnam for changing the classification of an extent of 4000 square yards of land in NTS No.45, Block No.21, Rev. Ward No.16 of Machavaram Village, Vijayawada Urban Mandal, Krishna District from burial ground to AWD and to direct the respondents to change the classification of the said land from burial ground to patta land, the present writ petition came to be filed.
3. The averments in the affidavit filed in support of the writ petition show that the mother of the petitioner No.1 purchased an extent of 2000 square yards under registered sale deed No.677/1963, dated 21.2.1963. Since then, she is said to be in possession and enjoyment of the property. In the year 1975, she obtained permission from Vijayawada Municipality and constructed A.C. sheet shed which is being used as a godown-cum- mosaic tiles manufacturing unit. After her demise in the year 1975, the said property devolved on one, Manepalli Harinarayana Murthy (deponent) and since then he is said to be in possession and enjoyment of the same. 2 Petitioner No.2 is said to have succeeded to an extent of 180 2/3 square yards under a registered will executed by one, Vemury Nancharamma, who is said to have purchased the said property under a registered sale deed, dated 16.5.1968. Petitioner No.3 purchased 125.27 square yards under registered sale deed, dated 20.12.1979. It is the case of the petitioners that their lands form part of Ac.2.73 cents and the land is recorded as burial ground poramboke in the Town Survey records. The Machavaram Village in which the lands are situated was an estate village under the possession and enjoyment of jagirdars. Initially, survey of the village was conducted in the year 1923 and since then the jagirdars are in possession and enjoyment of Ac.2.73 cents and that sale transactions took place between the jagirdars and individuals from the year 1901 onwards in respect of Ac.155.00 cents of land. The petitioners further pleaded that the lands have changed many hands during the last 110 years and that the burial ground is situated over an extent of 9111.36 square yards surrounded by a compound wall on all the sides and an extent of Ac.2.73 is outside the compound wall. As the petitioners were not able to obtain permission from the Corporation for construction of houses, they made applications to respondents for change of classification of the land from burial ground poramboke to patta land. The said applications were enquired into and the 4th respondent submitted a report dated 22.4.2010 to the 3rd respondent stating that 4000 square yards was wrongly classified as burial ground poramboke in Town Survey Records, whereas the said land has been in possession and enjoyment of private individuals from the year 1901 onwards and as such, requested the 3rd respondent to change the classification to patta land. Having examined the said report, the 3rd respondent sent proposals dated 21.2.2011, to the 2nd respondent in the writ petition agreeing with the report of the 4th respondent and sought for necessary changes in the classification of land. Both these reports are placed on record. After a thorough consideration of the reports, the 2nd respondent came to a conclusion that the authorities 3 were wrong in classifying the said land as burial ground poramboke. Accordingly, requested the Government for change in classification vide letter dated 18.10.2011. But, the 1st respondent in the writ petition revised his decision and concluded that there was wrong classification of the said extent of land in Town Survey Records and accepted the reports of the respondents 3 to 5 in the writ petition and accordingly granted permission for a change in classification from burial ground poramboke to AWD, to an extent of 4000 square yards in NTS No.45, Block No.21, Rev.Ward No.16 of Machavaram Village, Vijayawada Urban Mandal, Krishna District in relaxation of sub-paragraph (ii) of para (4) of B.S.O. 15 read with Note (2) thereunder vide Memo.No.43387/Assn.II(2)/2011-12, dated 24.5.2012.
4. It is the case of the petitioner that without looking into the said reports and the orders, the authorities converted the said land as AWD land and treated the petitioners as encroachers on the said land. It is further averred that when once land is treated as AWD, under A.P. Board Standing Order No.15(4)(ii), the said land is open for assignment. A reading of the impugned proceedings show that there was wrong noting of the extent of the land actually occupied by the burial ground which is protected by walls on all four sides. In the Town Survey Land Register, more than the actual burial ground is noted as burial ground poramboke. Therefore, it is evident that the change of classification should be from burial ground to patta land, but not from burial ground poramboke to AWD. Hence, pleads that the order impugned is liable to be quashed.
5. Counters came to be filed in the writ petition opposing the same. It is stated in the counter that petitioners having kept silent for nearly 50 years, started the issue to correct the classification of subject land from burial ground to private land. While accepting that jagirdars sold some part of land in the year 1901, it is urged that it cannot be explained whether the details of the land mentioned in the alleged sale deed correlates with the 4 present land or not as the pre-abolition record is not available. It is said that survey work was done twice since 1901 i.e., once in the year 1923 and for the second time in the year 1964-65 and it is said that had there been any mistake in recording classification details, the petitioners would not have kept silent all these years. Hence, pleaded that the entries made in the record are correct. The counter also refers to G.O.Ms.No.1235, dated 25.10.2008 in which the para 2(VII) is elucidated, which is as under :
"the existing burial ground must be protected from encroachments. Fencing to the existing as well as new burial grounds should be got arranged with the help of local financial contribution by the communities. Assistance of Advisory committees may also be sought to obtain community participation in providing such fencing."
6. Though the petitioners are in occupation of the said land since 40 years, a detailed report was submitted to the Chief Commissioner of Land Administration, seeking necessary permission for change of classification of the schedule land from burial ground to AWD land. It is said that the Chief Commissioner also submitted a report seeking necessary orders in the matter. On 24.5.2012, the Principal Secretary to Government issued orders permitting change of classification from burial ground to AWD to an extent of 4000 square yards in the land which is subject matter of dispute in relaxation of sub-paragraph (ii) of para (4) of B.S.O. 15.
7. Having regard to the above, it is stated that the 6th respondent has rightly refused to give permission for construction of houses in burial ground. It is further stated that long duration of illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. It is said that regularization should only be permitted in exceptional cases i.e., where lease has been granted under Government notification to landless labourers or members of scheduled castes/scheduled tribes or where there is already a school, dispensary etc. 5 Having regard to the circumstances, it is prayed that the authorities were justified in rejecting the request of the petitioners.
8. Considering the documentary evidence placed on record, the learned Single Judge while dealing with the land in question along with other lands, allowed the Writ Petition.
9. Challenging the same, the present Writ Appeal came to be filed by the Government in respect of this land alone.
10. Learned Government Pleader challenged the order of the learned Single Judge stating that it amounts to conferring title which is beyond its jurisdiction. It is said that the very writ petition ought to have been dismissed at the threshold inasmuch in the cause title the first respondent is shown as "Government of Andhra Pradesh" and not "State of Andhra Pradesh". It is further submitted that abutting land owners have filed W.P.No.32565 of 2013 before this Hon'ble Court seeking the very same relief wherein their request was not totally accepted and as such both these writ petitions ought to have been rejected. Hence, pleads that the order is liable to be set aside.
11. It may not be necessary for us to reiterate the facts once again, but however, it is to be noted that the Revenue Divisional Officer, Vijayawada in his report to the District Collector, Machilipatnam, reported that the land admeasuring Ac.155.00 was registered through a sale deed during the year 1901 in favour of Vahijullah Saheb, son of Afizullah Saheb and that the same changed hands under subsequent sale deeds dated 17.11.1931, 20.6.1940 etc., Report refers to about 18 sale deeds and area of land vary from case to case.
12. The issue was summarized by the Revenue Divisional Officer as under :
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1. Machavaram Village in Vijayawada Urban Mandal is an Estate Village.
2. As verified from the copies of the Registered Documents the land in question is Government Dry and there are link documents to that effect since 1901 and it was known as Government Dry.
3. Registered sale transactions occurred several times since 1901 to 1978 and there are link documents to that effect.
4. Since 1971, the Municipal Authorities have given the assessment number and allotted Door Nos.
5. Since 1969, the Municipal Authorities have approved the building plans in the subject land in favour of the petitioners.
6. The contention of the petitioners is that the land in question is a private land but not Government land.
7. In the year 1943, the Jageer Machavaram village was merged into Vijayawada Municipality much prior to Estate Abolition Act.
13. Further he has summed up the report as under :
"Finally the field staff have reported that the said land inspected on ground and confirmed and said boundaries for an extent of 4000 square yards and also as per the documentary evidences the land in question is merged in burial ground in detail Town Survey instead of patta land in the year 1964 and further submitted that the petitioners are resided in the said land since several decades. Hence there is no objection for Re-classification of land measuring 4000 square yards. In NTS No.45, Block No.21, Revenue Ward 16 of Machavaram Village from Burial Ground to patta land.
The Tahsildar, Vijayawada Urban has reported that the circumstances explained above and as per the documentary evidences filed by the petitioners the land in question is earmarked in Town Survey Records as Burial Ground but the land in question is merged in burial ground in detail Town Survey instead of patta land in the year 1964.
On the report of the Tahsildar, Vijayawada, Urban, I have inspected the land in question along with Tahsildar, Vijayawada Urban, Mandal Surveyor, Vijayawada Urban on 2.4.2010 and I agree with the report of the Tahsildar, Vijayawada Urban."
14. The District Collector sent his report dated 21.2.2011 to Chief Commissioner of Land Administration requesting for a change in classification of land admeasuring 4000 square yards in N.T.S. No.45, 7 Block No.21, Revenue Wards No.16 of Machavaram Village from burial ground to AWD. The Chief Commissioner of Land Administration addressed a letter to the Collector to re-verify the facts and submit a fresh report. In his report dated 3.9.2011, the Collector opined that no records are available to indicate that the land is a patta/private land and the same was wrongly classified as burial ground. Basing on the same, the Chief Commissioner of Land Administration submitted a report wherein he referred to the entry in the Fair Adangal prepared in the year 1968 and described the land as smasanam. He further states that the Assistant Director, Survey and Land Records reported that the Settlement Records under the Estates/Inam Abolition Act are not available for examination and that the petitioners have produced only the sale transactions from the year 1901, which indicate that it is a private land and that the petitioners have not produced any other relevant document, such as, Ryotwari Patta in support of their claim.
15. Having regard to the above, the 1st respondent in the Writ Petition rejected the plea of the petitioners for conversion of the land from burial ground to patta land. As observed by us earlier, the Collector, Krishna District, filed counter and averred that mere occupation of the land classified as burial ground and sale of the same through registered sale deeds does not confer title on the claimants; that no Ryotwari Patta has been obtained by the petitioners under the Estates Abolition Act; and that the petitioners failed to approach the authorities concerned during survey and settlement operations that took place in the year 1964-65 seeking proper classification and that the settlement process was completed and Town Survey Register was prepared in the year 1968.
16. It is to be noted that Field Staff conducted survey and reported that there are nine structures which are part of RCC building and which were said to have been constructed more than 40 years back and since then, 8 families are residing therein. Local enquiry revealed that there are houses existing over several decades in the area and municipal authorities have assigned old and new assessment numbers in the name of petitioners.
17. The relevant portion of the Memo. No.43387/Assn.II(2)/2011-2, dated 24.5.2012 reads as follows :
"In the reference 2nd cited, the District Collector, Krishna has reported that there is no recorded evidence for wrongly noting the private land as Burial ground except registered documents produced by the petitioners. As per the Town Survey record, the total extent of the land in NTS No.45 is 13244.11 square yards classified as Smasanam (Burial Ground). Out of that an extent of 4132.75 square yards is covered by the (9) structures of private persons and the remaining 9111.36 square yards is covered with compound wall and utilized by the Municipal Corporation authorities as a burial ground as on date. He has also reported that even though the scheduled land is classified as Burial Ground, houses were constructed for the last 40 years, link documents available and VMC has approved lay out also. He has therefore requested to accord necessary permission for change of classification from 'Burial Ground' to 'AWD' to an extent of 4000 square yards in NTS No.45, Block No.21, Revenue Ward No.16 of Machavaram Village, Vijayawada Urban Mandal.
.....
Government after careful examination of the proposal has decided to accord permission to the District Collector, Krishna for change of classification from 'Burial Ground' to 'AWD' to an extent of 4000 square yards in NTS No.45, Block No.21, Revenue Ward No.16 of Machavaram Village, Vijayawada Urban Mandal, Krishna District in relaxation of sub-paragraph (ii) of para (4) of B.S.O. 15 read with the provision of Note (2) there under, since the event took place 40 years ago."
A reading of the Memo., dated 24.5.2012 indicates that the classification of the land as burial ground was accepted to be a mistake even by the 1st respondent, in view of the reports of the authorities. When the old survey numbers show part of the land as having houses, showing the said land in R.S. No.14 as smasanam (burial ground) in the Town Survey Records appears to be without any basis. The said mistake was accepted and later corrected by the respondents themselves. 9
18. It was further found that the land in the subject area has got several registrations much prior to independence also. Regularization in respect of the lands in Jagir Machavaram came to be done by the family members of jagirdars and since then, several registrations were made for the same land up to 1979. Municipal tax and buildings plans came to be submitted by the writ petitioners to show that it is a patta land. But, however, inadvertently, during the survey in 1964-65 classification of the subject land came to be recorded as burial ground instead of patta land which was found to be incorrect. The finding on the field survey reports of the field staff, who were directed to conduct such survey by the respondent authorities, referred to above, is sufficient to indicate that it is a patta land and not Government land. As observed by us earlier, in the year 1901 itself, the land was registered in favour of Vahijullah Saheb and particulars of the sale transactions were indicated in the report. As observed by us earlier, 18 transactions took place till then. The manner in which the report came to be submitted by the field staff, which was accepted by all the authorities, show that on 22.4.1947 one, Mareedu Sambamurthy purchased an extent of 2000 square yards from Veeramachaneni Ranga Rao and the said land is classified as dry as per the document. Mareedu Sambamurthy sold away the land to Manepalli Harinarayana Murthy. The Field Staff also verified the document of Smt.Anne Satyavathi, who purchased the land to an extent of 2003 square yards from Veeramachaneni Ranga Rao vide registered document No.69/47, dated 7.1.1947. Smt. Anne Satyavathi sold away the land to Smt.Schandra Vijayalaxmi and 7 others. The report of the Field staff shows number of link documents since 1901 and the site in question was known as Government Dry, but there is no evidence on record to show as to when the village was taken over after the commencement of Estate Abolition Act. There is no material to show that whether enquiry under Section 15(1) of 10 Estates (Abolition & Conversion into Ryotwari) Act 26 of 1948 was conducted. It is stated that even prior to the implementation of the Act, number of sale transactions took place in respect of the subject land from 1901 to 1978. Finally, the Field staff in their report opined that the subject land covering an extent of 4000 square yards got merged with the burial ground. Therefore, the preliminary report, which was confirmed by all the higher authorities including Collector after a due survey, show that the said land requires to be re-classified from burial ground to patta land.
19. The question now is with regard to the entries made in Town Survey Land Register. The object of undertaking detailed surveys, as observed by us earlier, is not only to survey the boundary between the states and private properties, but also the boundaries of all private properties whether built up or vacant, Government lands and Municipality lands. The nature and scope of entries in TSLR fell for consideration before a Division Bench of this Court in W.A.Nos.115 and 160 of 2000. The Court held that the entries in TSLR are no doubt relevant, but they are not conclusive; that TSLR cannot be regarded as a sole guiding factor while dealing with applications for building permissions; and that TSLRs have to be considered in conjunction with other documents which the applicant would like to place reliance upon.
20. In Hyderabad Potteries Pvt. Ltd. v. Collector, Hyderabad District and another1, a bench of this Court also considered the scheme of the A.P. Survey and Boundaries Act, 1923 and held that survey made under the said Act is mainly intended for the purposes of identification of lands and fixation of boundaries and that there is no provision thereunder to make any detailed enquiries with regard to the right, title and interest of persons in the lands. It would be appropriate to extract the relevant paragraph as under :
1
2001(3) ALD 600 11 "A bare reading of scheme of the A.P. Survey and Boundaries Act, 1923 would make it clear that the survey made under the said Act is mainly intended for the purposes of identification of the lands and fixation of boundaries. There is no provision under the Act intending to make any detailed enquiries with regard to the right, title and interest of the persons in the lands. It is neither the object nor the scheme of the said Act. There is no presumption that every entry made in the TSLR shall be presumed to be true until contrary is proved as in the case of entries made in the record of rights under the provisions of A.P. Record of Rights in Land and Pattadar passbooks Act, 1971. It is not a record of right. There is no such provision in the Andhra Pradesh Survey and Boundaries Act, 1923."
(Emphasis added).
21. The dispute raised in Hyderabad Potteries Pvt. Ltd. Case came up for consideration albeit in a different context in State of A.P. v. Hyderabad Potteries Pvt. Ltd.2 wherein while dismissing the appeal filed by the State of Andhra Pradesh, the Apex Court held as under :
"The sole basis of the appellant to claim the land was on the strength of entries made in survey records showing that the schedule property was surveyed as T.S.No.4/2, Ward No.66 of Bakaram Village having an area of 19,214 sq.m. showing it as a gap area i.e., unsurveyed area as per the old survey records and as such it could only be declared to be government land as has been recorded in Column 20 of TSLR. Apart from the said revenue record and issuance of gazette notification as mentioned hereinabove, no other material document was filed by the appellant to show that the said land belonged only to the Government. It is trite that entry in the revenue record alone may not be sufficient as conclusive proof of tile nor can be relied on for proof of establishing the title as such." (Emphasis supplied)
22. From the judgments referred to above, it is very clear that the entries in TSLR do not constitute conclusive proof of title.
23. The admitted facts however remain that as far back as in 1901, an extent of Ac.155.00 was purchased by one, Vahijullah Saheb, son of Afizullah Saheb through registered sale deed from a private person and the same changed hands under as many as 18 sale deeds, from 17.11.1931 to 20.6.1940 and further sale deeds were registered up to the year 1978. The report of the Revenue Divisional Officer revealed that the land in question is 2 (2010) 5 SCC 382 12 patta land. In the year 1971, the Municipal authorities have given assessment numbers to properties and allotted door numbers. Since 1969, the Municipal authorities have been approving building plans for construction made in the subject land. The Revenue Divisional Officer's report was endorsed by the District Collector in his report dated 21.3.2011. However, on a reference made by the Chief Commissioner of Land Administration (CCLA) to the Collector, Krishna District, for rectification of the facts and submission of a report, the Collector relied upon the Fair Adangal prepared in the year 1968 describing the land as 'smasanam'. Basing on the report submitted by the CCLA, the Government rejected the petitioners' claim for conversion of land from burial ground to patta. In essence, the respondents sought to treat the entries in the TSLR and the Fair Adangal as conclusive proof of the nature of the land.
24. Keeping in view the law laid down, it is to be noted that the entries made in revenue and survey record, are only used to fix the boundaries and cannot be used to decide the right and title over the property. There is no dispute that the land form part of Machavaram village estate and even before the estates were abolished, the same was merged with the Vijayawada Municipality in the year 1943. As per the report of the Assistant Director, Survey and Land Records, the settlement records under the Estates/Inams Abolition Act were not available for examination. No documents have been discussed or referred to for changing the entries in the Fair Adangal, describing the land as a burial ground in the year 1968. If really it was a burial ground, it is strange as to how registered sale transactions were allowed to take place from the year 1901 and also as to how Vijayawada Municipality made assessment of the properties, approved building plans and allotted door numbers. There is a continuous flow of registered sale transactions in respect of these lands which are reflected in the Government records.
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25. Hence, as observed by the learned Single Judge the doctrine of estoppel by conduct needs to be applied. The Government cannot rely upon a stand alone entry in the TSLR or in Fair Adangals prepared in the year 1968 by which time number of registered sale transactions took place. Therefore, in our view, the earlier reports submitted by the Revenue Divisional Officer and the District Collector, which were accepted by the all authorities concerned, ought to have been accepted by the 1st respondent in the Writ Petition as well.
26. Hence, the finding of the learned single Judge that the classification of the subject land has to be changed from burial ground to patta land and not to Assessed Waste Dry requires no interference.
27. Accordingly, the Writ Appeal is dismissed. No order as to costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________________________ ACTING CHIEF JUSTICE C.PRAVEEN KUMAR ______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date : 18.9.2019 skmr