D. Narsing Rao And Others v. Government Of Andhra Pradesh And Others

1. Since common questions of law and fact arise for consideration in these two writ petitions, they are being disposed of by this common order. For the purpose of convenience, the facts as narrated in WP No. 21779 of 1997 are stated briefly, as under:

2. According to the petitioners, S. Nos. 36 and 37 measuring Acs. 280-00 guntas and Acs. 378-17 guntas of Gopanpalli Village were Jagir lands. Since Jagir period, different persons were in possession of the said lands and after abolition of ‘Jagirs’, the same were reflected as pattas in the Khasra Phani for the year 1954–55, which was prepared under Section 4(2) of the A.P (Telangana Area) Record of Rights in Land Regulation, 1358 F. Subsequently, the pattadars had alienated the lands to the petitioners under registered sale deeds, as per Annexure-II. Since the date of purchase, the petitioners are in possession of the lands purchased by them. The total area of S. No. 36 is Ac. 280-00 and the patta was granted to an extent of Acs. 44-00. Likewise, the total area of S. No. 37 is Acs. 378-17 guntas, for which patta was granted to an extent of Acs. 46-00. Further, in the Khasra Pahani, the Survey Numbers and the extents therein were also mentioned. While so, the Government, without mentioning the sub-numbers given to the pattas and without identifying the area belonging to the Government, leased out the area admeasuring Acs. 70-00 in S. Nos. 36 and 37 to different persons for establishing stone metal crushing units.

3. While the matter stood thus, some persons, claiming themselves as Contractors, have engaged labourers for developing the land in S. Nos. 36 and 37 into housing plots and they wanted to divide the lands held by the petitioners into housing plots. The petitioners objected for the same and on enquiry they came to know that the Government has reserved and allotted the land in S. Nos. 36 and 37 of Gopanpally Village for housing purpose for construction of N.G.O Homes at Headquarters. The petitioners could secure copies of the relevant G.Os, namely, G.O Ms. No. 589 dated 10.7.1991 and G.O Ms. No. 850 dated 24.9.1991, issued by the Government of A.P, Revenue (Assignment-III) Department. On perusal of G.O Ms. No. 580 dated 10.7.1991 it is found that the Government in consultation with the Commissioner of Land Revenue, A.P Hyderabad and the Collector, Rangareddy District, has reserved 400 acres in S. Nos. 36 and 37 of Gopanpally Village in Rangareddy District, as identified by the Collector, for providing house sites to the Government employees, working in twin cities etc. Further, on perusal of G.O Ms. No. 850 dated 24.9.1991, it is found that respondent No. 1 instead of reserving 400 acres in S. Nos. 36 and 37 of Gopanpally Village as identified by the District Collector, Rangareddy District, has reserved 477 acres in S. Nos. 36 and 37 of Gopanpally Village for house sites to the Government employees, as detailed below:

(i) 427 acres …. For provision of house sites to the Government employees working in twin cities as well as to those working in adjoining districts and those who are being posted in the city on transfer.

(ii) 50 acres … For providing housing for Government employees working Hyderabad and Rangareddy Districts.

4. Thus, after deducting 70 acres and 100 acres of land from out of the area in S. No. 36.AA and 37.A, the remaining area will be only Acs. 408-17 guntas. Thus, the area which remained in S. Nos. 36 and 37 is only Acs. 408-70 guntas. The Government, while issuing G.O Ms. No. 850 dated 4.9.1991, did not mention the area in each survey number for reserving the same for house sites to the Government employees and did not even give the sub-numbers of S. Nos. 36 and 37, which are being treated as Government lands, but only mentioned as ‘477 acres in S. Nos. 36 and 37 of Gopanpally Village’, even though the sub-numbers are existing in the revenue records. In view of the above defect and legal flaw committed by respondent No. 1 while issuing G.O Ms. No. 850 Revenue (Asn.III) Department dated 24.9.1991, respondents 2 and 3 and the Contractors appointed by them are trying to include the patta lands of the petitioners within the area reserved for house sites to the Government employees.

5. The Second writ petition i.e WP No. 1731 of 2005 is filed challenging the consequential notice dated 31.12.2004 in Case No.D5/9388/2003 on the file of the learned Joint Collector, Rangareddy District, Hyderabad whereunder the petitioners were asked to appear in his Court on 5.2.2005 either in, person or through Counsel along with documentary evidences and defend the case as to cancellation of unauthorized entries in respect of land bearing Sy. Nos. 36 (460-07) and 37 (424.17) situated at Gopanpally Village of Serilingampally Mandal, purported to be under Section 166-B of A.P (TA) Land Revenue Act, 1317-F.

6. Detailed counter-affidavits have been filed by the official respondents in both the writ petitions. It is admitted that Gopanpally Village of Rangareddy District is originally a Jagir Village and that the ‘Jagirs’ were abolished on 15.8.1948 under the A.P (Telangana Area) Abolition of Jagirs Regulation, 1358 Fasli. Under the A.P (Telangana Area) Abolition of Jagirs Regulation, 1358 Fasli, all the ‘Jagirs’ stood abolished and merged with Diwani/Government. The pre-existing rights in all the ‘Jagirs’ vis-a-vis the Jagirdars were taken away and the Jagir Villages merged with the Government. The Jagirdars were directed to handover possession between 6.9.1978 and 20.9.1978 to the Jagir Administration. The Jagirs were taken away by the Government by 20.9.1948 The Jagirdars were entitled for compensation in accordance with the provisions of A.P (Telangana Area) Abolition of Jagirs Commutation Regulation, 1358 Falsi. In Nizam's regime, Jagirs were granted and they were in the nature of Crown's grants, as held by the Courts. Jagirs were granted for the lifetime of Jagirdars. The Jagirdars did not have any right to alienate the Jagir lands. Jagir is not hereditable. As per the Khasra Pahani for the year 1954–55, the following sub-divisions were made in the Survey Numbers fraudulently by the Patwari, but those sub-divisions and names were not approved by the Nazim Jamabandi in Faisal Patti during the year 1954–55 as per the procedure in vogue:

Sy. No. Extent Classification Name records 36/ 415-07 PP Kancha Sarkari Sarkari 36/ 12-20 Patta Madan Mohan 36/ 12-20 Patta Surender Mohan 36/ 10-00 Patta Vasanth Prasad 36/ 10-00 Patta Bheekam Prasad 37/ 378-17 Chinna Kancha Sarkari Sarkari 37/ 5-00 Patta Rukmojee 37/ 10-00 Patta Maisaiah 37/ 2-00 Patta Tukaram 37/ 11-00 Patta Tukaram 37/ 1-00 Patta Tandur Hiroji 37/ 2-00 Patta Tandur Hiroji 37/ 2-00 Patta Tolimahadev 37/ 6-00 Patta Tolimahadev 37/ 2-00 Patta Ragam Lachma 37/ 5-00 Patta Ragam Janga

7. Further, the schedule land bearing S. Nos. 36 and 37 of Gopanpally Village, Serilingampally Mandal was classified as “Chinna Kancha” from the time of Jagir abolition on 15.8.1948 Since the said is classified as ‘Chinna Kancha’ (grazing land), it belongs to Government. By virtue of provisions of Section 17 of A.P (Telangana Area) Abolition of Jagirs Regulation, 1358 Fasli, no forest or waste land shall be included in any farm. The land in question, which has been classified as Kancha, (grazing land), will not vest even with Jagirdars but vests with the State Government. Even as per Circular No. 22 of 1322-F, no Government Number and Banjar Lands, whose area is Acs. 100-00 or more, shall be given patta without permission of the Government. Further, the allegation of the petitioners that the land has been given by Jagirdar as patta in S. Nos. 36 and 37 and that the same was recognized by the Government by incorporating their names in the pahani for the year 1954–55 is denied as far from truth. It is stated that the Government has not recognized these entries in Khasra Pahani for the year 1954–55 as the same were entered fraudulently without any orders from the Government. The petitioners merely relied on the land given by Jagirdar, who is not at all competent, without filing any relevant document. The petitioners may be put to strict proof of alleged pattas granted to them by Jagirdar and the orders of the Government recognizing the orders of Jagirdars. The entries in the Khasra Pahani for the year 1954–55 and subsequent pahanies, which were detected by the revenue authorities, were made by the then Patwari without any orders of the competent authorities. As per the procedure in vogue during every year (March/April), the Nazim Jamabandi was conducted for verification of lands, land revenue and to pass orders of changes by alienation etc., in Faisalpatties and the said changes would be incorporated in subsequent pahanies as ordered in Faisalpatti. But, in the schedule land cases, no such orders were passed at any time in any Faisalpatti. The lands in question to an extent of Acs. 460-07 cents in S. No. 36 and Acs. 428-17 guntas in S. No. 37 are classified as ‘Chinna Kancha’ i.e grazing lands. As per the A.P (Telangana Area) Land Revenue Act, 1317-F, the grazing land cannot be given for any purpose. Further, as per the Revised Assignment Rules, 1950, the assignment of grazing lands is prohibited. Any transaction over this Government land, whether alienated through registration or any other instrument, is null and void. The records were prepared according to Rules and Regulations, but the unlawful and fraudulent entries were made by the then Patwari without any orders from the competent authority. As soon as the said entries detected, the Mandal Revenue Officer, Serilingampaly vide Lr. No.B/2545/2003 dated 17.12.2003 reported the matter to the Collector, Rangareddy District for rectification of those fraudulent entries and the matter is pending before the Joint Collector, Rangareddy District. Under similar circumstances, when WP 26987 of 2003 was filed, this Court by an order dated 13.8.2004 observed “It shall however be open to the Revenue Authorities to take appropriate action in accordance with law if Revenue Authorities feel that the entries made in the year 1954/55 by the Patwari are fraudulent”. Thus, this Court recognized fraudulent entries in the pahani for the year 1954–55. Since the schedule land is Government and vacant land, it has been reserved for public purpose and allotted for development of public purpose. The petitioners are neither assignees nor legal pattadars of the Government land. The Hyderabad Central University has taken up developmental activities on the land, which was handed over to them. The petitioners have no legal title over this land. They are not competent to claim Government land. There is a ban for allotment of Government lands to anyone, individually. The petitioners are relying upon the fraudulent entries made in the Khasra Pahani for the year 1954–55. The petitioners, with a mala fide intention to grab the valuable land, are making false allegations against the Government though they are not the legal title-holders. The Government has issued G.O Ms. No. 850 dated 24.9.1991 for provision of house sites to the Government employees working in twin cities as well as to those working in adjoining district in good faith and the record is available with the concerned revenue authorities. As such, the said G.O, cannot be found fault with. There are no merits in the writ petitions and they are liable to be dismissed.

8. While admitting the writ petition in WP No. 21719 of 1997, interim direction not to dispossess the petitioners from the lands mentioned in Annexure-I was granted on 30.9.1997 Likewise, while issuing before admission in WP No. 1731 of 2005, interim stay of the impugned notice dated 31.12.2004 was granted for a period of three weeks on 7.2.2005 and while admitting the writ petition on 1.3.2005, the same was directed to be continued pending further orders. Thus, in both the writ petitions, interim orders are passed and they are subsisting. However, inspite of service of notice, none appeared for 3rd respondent in WP No. 21719 of 1997 and there is no representation either.

9. Heard both sides.

10. From the above, it is clear that even according to the respondents, the entries in the Khasra Pahani for the year 1954–55 reflect the names of the predecessors-in-title of the petitioners insofar as the subject lands are concerned. However, it is the contention of the Government that the said entries were fraudulently made by the then Patwari in the year 1954–55. Thus, the entries are available in the revenue records since 1954–55, along with subdivisions as claimed by the petitioners. Under those circumstances, it has to be seen whether the respondents are justified in issuing G.O Ms. No. 850 Revenue (Asn-III) Department dated 24.9.1991 and allotting the land for house sites to the Government employees etc., brushing aside the entries which are staring at them and, further, issuing the notice in the second writ petition on 31.12.2004 asking the petitioners to appear before the Joint Collector for conducting enquiry with regard to cancellation of entries made in the Khasra pahani for the year 1954–55.

11. Now it is more than 50 years since the entries are available in the revenue records against the lands held by the petitioners to an extent of Acs. 44-00 in Sy. No. 36 and Acs. 46-00 in Sy. No. 37 of Gopanpally Village of Rangareddy District. Even if what the Government has stated in the counter-affidavits is true, it may not be fair on the part of the respondents-authorities to conduct some enquiry and correct the entries in the revenue records at this length of time. The predecessors-in-title of the petitioners have accrued substantial rights in the property as per the entries available in the Khasra Pahani for the year 1954–55, so also, by way of their continued possession and enjoyment. In a given case, may be, the revenue authorities are entitled to conduct some enquiry and take appropriate action in accordance with law as to the entries made in the revenue records fraudulently. But, the entries in the present case, namely, Khasra Pahani for the year 1954–55 were not of recent origin. If the entries are made recently and fraudulently, the respondents are entitled to conduct enquiry and take appropriate action. This is not one such case. Here is a case where the entries were made more than 50 years back since now and such entries cannot be brushed aside just by saying that they were made fraudulently. The person who made those entries is not available and two generations have gone by in the meanwhile and definitely the petitioners have accrues substantial rights over the property. The purchase of the subject land by the predecessors-in-title of the petitioners under registered sale deeds as per Annexure-II does not seem to be in dispute. The respondents have not asserted that the predecessors-in-title of the petitioners or the petitioners were never in possession of the subject land. When the respondents-authorities are alleging that the entries were made fraudulently, obviously the burden of proof lies on them to prove that the entries in the Khasra Pahani for the year 1954–55 are fraudulently fabricated. May be, for that purpose, the respondents may file civil suit and get the title declared by a competent civil Court. The exercise undertaken by the respondents amounts to exercising of suo motu revisional powers and such exercise of powers after a long lapse of time even in the absence of any period of limitation, is arbitrary and opposed to the concept of rule of law. The summary remedy of enquiry and correction of records after more than 50 years cannot be invoked in a case of this nature where bona fide dispute of title between the Government and the petitioners exists.

12. Such dispute must be adjudicated upon by the ordinary Courts of law instead of correcting the records by some proceedings and evicting the petitioners. In this regard I am fortified by a judgment rendered by the Supreme Court in Government of A.P v. Thummala Krishna Rao, (1982) 2 SCC 134 : AIR 1982 SC 1081 and also a judgment of this Court in Prathap Jungle Resorts Pvt. Ltd., Hyderabad v. Joint Collector, Hyderabad, 2009 (1) ALD 401 : 2008 (4) ALT 794.

13. Under those circumstances, this Court is of the considered opinion that issuance of impugned G.O Ms. No. 850 Revenue (Asn-III) Department dated 24.9.1991 insofar as the lands held by the petitioners to an extent of Acs. 44-00 in Sy. No. 36 and Acs. 46-00 in Sy. No. 37 of Gopanpally Village of Rangareddy District as well as the impugned notice bearing No.D5/9388/2003 dated 31.12.2004 seeking to conduct enquiry into such serious dispute of title are arbitrary and illegal.

14. Therefore, G.O Ms. No. 850 Revenue (Asn-III) Department dated 24.9.1991 insofar as the lands held by the petitioners to an extent of Acs. 44-00 in Sy. No. 36 and Acs. 46-00 in Sy. No. 37 of Gopanpally Village of Rangareddy District as well as the impugned notice bearing No.D5/9388/2003 dated 31.12.2004 are liable to be set aside and accordingly set aside. The writ petitions are accordingly allowed. No order as to

15. However, it is made clear that the Government is at liberty to work out its remedies by way of filing civil suit, claiming title etc., in accordance with law.