1. This intra court appeal is filed by the State challenging the order, dated 12.08.2011, passed by the learned Single Judge in Writ Petition No.17165 of 2011.
2. Heard Mr. T. Srikanth Reddy, learned Government Pleader for Revenue (appearing for the appellants) and Mr. A.Sudershan Reddy, learned Senior Counsel representing Mr. P.Roy Reddy, learned counsel for the respondents.
3. Facts giving rise to filing of this appeal briefly stated are that respondent No.1-Smt. B.N.Manga Devi and respondent No.2-Shri B.N.Srinivasan have purchased two pieces of land in Survey No.32 of Saidabad Village forming part of Municipal Corporation area admeasuring 108.69 Sq. Mtrs and 309.35 Sq. Mtrs respectively vide two registered sale deeds, dated 29.07.1980, bearing Nos.775/81 and 8101/80. They purchased the said extents of land from one Shri G.Balaiah, who in turn purchased from one Shri Lakshminarayan, under registered sale deed, dated 17.12.1977, bearing document No.1449/80. As per averments made in the writ petition, residential structures exist on the said lands and are assessed to municipal property tax and have been provided with electricity, water and drainage connections. The Tahsildar issued notices to both the respondents on 28.04.2011 under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 on the ground that they are in unauthorized occupation of Government land and proceeding was initiated on 07.06.2011. Thereafter attempts were made to evict the respondents, thereupon they have approached the writ court.
4. Learned counsel for the appellants submits that the respondents/petitioners have encroached the Government land and the learned Single Judge erred in interfering with the order, dated 07.06.2011, without appreciating the facts in the proper perspective. He further submits that respondents miserably failed to establish the title over the said property which is in fact a Government property. Reliance is placed on Town Survey Land Record entries (henceforth referred as ‘TSLR’), Revenue Records i.e., Pahanies, Classer Registers. It is submitted that the subject property is classified as “Khabarastan” (graveyard land) in the revenue records and also “Sarkari”. In the absence of any substantial documentary evidence placed by the respondents, the learned Single Judge erred in giving undue emphasis on decided cases. It is contended that with regard to the subject property, number of Writ Petitions were filed on earlier occasions by respondents, the details of which are as under:
i) The first of the W.P.No.29057 of 2008 was filed by one of the respondents (Smt. B.N.Manga Devi) claiming to be the owner of the house property in which a direction was sought not to evict or interfere with her possession without following due process of law. The said W.P. was disposed of on 07.12.2010 with a direction that the authorities could not evict or interfere with the petitioner’s house property, without following due process of law.
ii) W.P.No.4739 of 2008 came to be filed by Shri B.N.Srinivasan seeking a direction to the authorities not to demolish and dispossess from house property. The learned Single Judge dismissed the writ petition and has held that the land in dispute has been recorded as Sarkari and graveyard land.
iii) W.P.No.14683 of 2011 came to be filed by Shri B.N.Srinivasan and Smt. B.N.Manga Devi seeking a direction to the authorities not to take further action in pursuance to the impugned notice dated 28.04.2011 received on 23.05.2011 in respect of the said land (property) and to direct the respondents to consider the explanation to be filed after giving a reasonable opportunity.
The learned Single Judge disposed of the Writ Petition on 31.05.2011 permitting the petitioners to submit an explanation to the show cause notice and submit all the documents within one week and that the authorities would not take coercive steps for eviction from the land in question till final orders are passed under the provisions of Land Encroachment Act, 1905. It was also observed that if no such reply was filed within one week, it was open to the authorities to take action in accordance with law.
iv) W.P.15663 of 2011 came to be filed by Smt. B.N.Manga Devi and Shri B.N.Srinivasan seeking a direction to declare the action of the authorities (respondent No.3 therein) in initiating proceedings under the Andhra Pradesh Land Encroachment, Act 1905 in letter bearing No.B/354/2011 in respect of the property covered by premises No.16-1-24/60/1, Saidabad Colony, Hyderabad to an extent of 108.69 Sq. mtrs. of Smt. B.N.Mangadevi and an extent of 309.35 Sq. mrts. of Shri B.N.Srinivasan as illegal and arbitrary.
The learned Single Judge has held that “So far as the scope of the present Writ Petition is concerned, the initiation of the proceedings under the said Act is questioned, but the said initiation of the proceedings has culminated into final order dated 07.06.2011. So far as the grievance of the petitioners relating to excess execution or highhanded execution of the orders as well as legality and propriety of the final orders under Section 6 of the Act, the petitioners are at liberty to take appropriate legal proceedings available including an appeal against the said final order dated 07.06.2011. Keeping all the said liberties of the petitioners open, this Writ Petition is liable to be dismissed and it is accordingly dismissed.”
5. Learned counsel for the appellants further contended that the respondents to perpetuate their encroachment of the government land have been filing Writ Petitions. It is contended that respondents herein challenged proceedings in W.P.Nos.14683 of 2011 and 15663 of 2011 and in the said Writ Petitions, this Court has held that the land is recorded as Sarkari and graveyard land. It is argued that Writ Petition No.17165 of 2011 is hit by the principle of res judicata. It is further argued that the decision relied upon by the Court in Government of Andhra Pradesh Vs. Thummala Krishna Rao and another AIR 1982 SC 1081 is not applicable to the facts of the present case as there is no bona fide claim. It is submitted that the sale deed being relied upon by the respondents does not have the survey number and no documents are placed on record to substantiate their claim of long possession.
6. It is further submitted by learned counsel for the appellants that that the judgment in W.A.No.626 of 1997 i.e., District Collector, Hyderabad and others Vs. K.Narasing Rao and others 1997 (4) ALD 649 (DB) is not applicable to the facts of the present case. Attention of this Court has been invited to the proceeding of the Tahsildar dated 07.06.2011 and it is pointed out that objections filed, have been considered and after examining the records, passed a reasoned order rejecting the objections. A notice for eviction to take possession has been issued and that the learned Single Judge erred in directing restoration of the said subject land (property) to the respondents. It is further contended that the reliance upon Hyderabad Potteries Private Limited Vs. Collector, Hyderabad 2001 (3) ALD 600 was misconceived as admittedly the property herein is the government land and in the absence of any substantial evidence, the respondents cannot raise any claim over the said property and that proper course for the respondents is to avail the remedies available as per law. Our attention has been invited to the notice, dated 28.04.2011, issued to both respondents under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 and in the table (specified as SCHEDULE) under the column nature of occupation, the entry is shown as illegal encroachers and adjacent to that it is entered as “cover by compound wall ACC Shed with one room”, submitted that it is common knowledge that encroachers erect temporary sheds of this nature, the contention of the respondents that the premises is a residential structure with electricity, water and drainage connections is false. No building construction permission is placed on record to substantiate that there is a residential structure existing in the said land. This Court finds force in the contention that no building construction permission is placed on record to show that there is a residential structure existing as contended by the respondents/writ petitioners. It is submitted that the W.P.No.15663 of 2011 has dealt with all the proceedings till the date of its disposal.
7. Learned Senior Counsel appearing on behalf of the counsel for the respondents submitted that respondent No.1 purchased land to an extent of 108.69 Sq. Mtrs, vide registered sale deed dated 29.07.1980 (Document No.775/81) and respondent No.2 purchased land to an extent of 309.35 Sq. Mtrs., vide registered sale deed dated 29.07.1980 (Document No.8101/80) and that the executant of the above sale deeds purchased the property vide sale deed dated 17.12.1977 (Document No.1449/1980) and that the land is situated in Revision Survey No.32 in Town Survey No.5 of Saidabad Village. The said land in Revision Survey No.32 of Saidabad Village is a private land as per Classer Register. Notice was issued by the Tahsildar on 28.04.2011 on the strength of entry in the TSLR wherein the land is shown as graveyard, but there is no graveyard over the said land. Reliance is placed upon the judgments of this Court in the case of Hyderabad Potteries Private Limited (2001 (3) ALD 600 supra) to support the contention that TSLR do not constitute record of rights and it is only for the purpose of fixation of boundaries and identification of lands and the claim of the appellants that the land belongs to Government cannot be based on TSLR entries. It is submitted that detailed explanations were submitted to notice, dated 28.04.2011, vide letters dated 05.06.2011 with relevant documents submitted on 06.06.2011 and that without giving an opportunity, the compound wall and a portion of premises was demolished on 08.06.2011, which led to the filing of the present Writ Petition (No.17165 of 2011).
8. The learned Senior Counsel appearing for the respondents further submitted that the learned Single Judge after considering the various judgments of the Hon’ble Apex Court and other Courts has held as follows:
“In view of the well settled principles of law on the subject, all I need to do, is to leave it to the State to initiate appropriate legal proceedings for having its title declared and possession restored and until that is done, the petitioners cannot be evicted from the lands in question pursuant to the summary procedure followed under the L.E. Act. Even if the 3rd respondent Tahsildar has recorded to have taken possession of the land, the same shall be treated as ineffective and hence, possession has to be restored to the petitioners.”
9. Learned Senior Counsel submitted that the word “Sarkari” in column No.6 of the copy of Classer Register with respect to the said Survey Number does not mean that the said property belongs to Government and that the word Sarkari only means that the Government collects revenue/dues. Our attention has been drawn to an extract of a photocopy of Town Survey Register, wherein Survey No.32 is mentioned in Column No.3 and at column No.10 under the heading Revenue Register, the entry is noted as “Sarkari” in vernacular language and in Column No.20 under the heading the Name of the Present Enjoyer, the entry is as “Smashanam” in vernacular language (graveyard) and in column No.23 under the heading remarks, the entry again shows as “Smashanam” in vernacular language (graveyard). To buttress the contention that the entries in Town Survey Register do not constitute record of rights, reliance is placed on the case of Hyderabad Potteries Private Limited (2001 (3) ALD 600 supra). Reliance is also placed upon the Judgment of the Hon’ble Supreme Court in the case of Kaikhosrou (Chick) Kavasji Framji Vs. Union of India and another (2019) 20 SCC 705 for the proposition that the summary remedy of eviction cannot be invoked by Government when occupant raises bona fide claim about his right over the premises.
10. We have considered the submissions made on both sides and have perused the record. Proceedings under challenge, dated 07.06.2011, are issued under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905 wherein it is held that the respondents are in unauthorized possession of Government Land. Against the said proceedings, a remedy of appeal has been provided under Section 10 and the same has not been availed. This Court, while dismissing W.P.No.15663 of 2011 by order, dated 10.06.2011, held that “the petitioners are at liberty to take appropriate legal proceedings available including an appeal against the said final order dated 07.06.2011” and has dismissed the Writ Petition.
11. As per Section 2 of Land Encroachment Act, 1905, all vacant lands, roads, streets, etc., absolutely vest in the State and they continue to vest notwithstanding the fact that they are vested in the possession of the encroachers. Suffice to state that the respondents herein, instead of availing the remedy under the law, filed a Writ Petition immediately within a fortnight after the dismissal of W.P.No.15663 of 2011 invoking jurisdiction of Article 226 of Constitution of India. The dispute whether land in issue is a private land or government land is a question of fact which this Court cannot decide by exercising jurisdiction under Article 226 of Constitution of India. The respondents/writ petitioners are bound by the order, dated 10.06.2011, passed in W.P.No.15663 of 2011 and ought to have filed an appeal. The learned Single Judge, therefore, has rightly declined to entertain the writ petition filed by the respondents herein.
12. For the foregoing reasons, the Writ Appeal is disposed of. The respondents are at liberty to avail remedies as per law. No order as to costs.
Miscellaneous applications pending, if any in this Writ Appeal, shall stand closed.
