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S. Lingamaiah vs State Of A.P. And Ors.

on 9 January, 2004

Equivalent citations: 2004 (2) ALD 837, 2004 (3) ALT 276 Bench: N Ramana S. Lingamaiah vs State Of A.P. And Ors. on 9/1/2004 ORDER N.V. Ramana, J. 1. Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has filed this writ petition, praying for the following reliefs: To issue a writ, order or direction, more particularly one in the nature of writ of mandamus declaring the Notice No. C/268/93, dated 2-9-1993, issued by the Mandal Revenue Officer, Golconda, Hyderabad, as well as all further steps taken thereon, as illegal, null, void, without jurisdiction and violative of Articles 14, 19, 21 and 300-A of the Constitution of India and to set aside the same, and grant such other reliefs which the petitioner may ultimately be found to be entitled to, in the circumstances of the case. Factual matrix of the matter 2. In the affidavit, filed along with the writ petition, it is stated by the petitioner that he is the owner and possessor of an extent of Ac.1-20 guntas of dry land in Sy.No. 102/1 of Hakeempet Village, Golconda Mandal, Hyderabad, in Ward No. 12, Block 'A', Town Survey No. 14/1, that prior to him the said land was in the possession of his father and grandfather, that the source of title was lost in antiquity, and that he had perfected his title to the said land by adverse possession. The petitioner states that the Tahsildar, Hyderabad, Urban Taluka, issued Pass Book of Record of Rights, Land Revenue, on 29-5-1970, and since then he has been paying the land revenue to the Government and is in possession of the land revenue receipts for the period from 29-6-1972 to 16-11-1991 supported by entries in the Ryotwari Pass Book, which according to him prove his long continuous uninterrupted possession. 3. While so, on 2-9-1993, alleging that the petitioner was in unauthorized occupation of Government land, a notice purported to be one under Section 7 of the A.P. Land Encroachment Act, 1905 (for short 'the Land Encroachment Act') was issued calling the petitioner to show-cause by 16-9-1993 as to why he should not be evicted from the land in his occupation. The petitioner claims to have submitted his explanation to the said show-cause notice on 14-9-1993 enclosing the xerox copies of the documents possessed by him. It is the case of the petitioner that the respondent-revenue authorities without passing any orders on the explanation submitted by him, have sought to evict him from the land, which is enclosed by a compound wall and a temple by name Maisamma Temple housed in it. According to the petitioner, the action of the respondent-revenue authorities in trying to dispossess him from the land in his occupation, is illegal and arbitrary, and thus sought for a direction or order, as aforesaid. 4. During the course of hearing of the writ petition, the petitioner filed a better affidavit stating that he is the absolute owner and possessor of the land admeasuring Acs.4-16 guntas in Sy.No. 102/1 of Hakeempet Village, Golconda Mandal, and prior to him his ancestors were in occupation of the said land for more than 100 years and were eking out their livelihood by cultivating the said land. According to the petitioner, the land in his occupation is squeezed between two hillocks forming a valley through which water flows into the land of the petitioner. The petitioner states that a Maisamma Temple is located in the land in occupation, and that one of the family members of the petitioner by name Smt. Sadamma was dedicated as Jogan to the said Maisamma Temple.

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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

5. According to the petitioner, on the application filed by Smt. Sadamma, the then Tahsildar and Collector in the regime of H.E.H. the Nizam, having recognized the status of Smt. Sadamma, as a Jogan of Maisamma Temple, granted the land in question from the Surfekhas land to her in file No. 22, vide proceedings dated 13 Isfandah, 1355 Fasli i.e., in 1945, and the Tahsildar and Patwari were also directed to make necessary entries in the registers, and since then the petitioner's family is in possession of the said land. 6. It is further stated that the petitioner was given Patta Pass Book under the Revenue Rules framed under the Act in 1970. The petitioner states that as the land is located between the hillocks, the entire extent of Acs.4-16 guntas could not be cultivated during all the seasons, and the petitioner was cultivating an extent of Acs.2-00 during the whole of the year, which according to the petitioner is evident from the certificate issued by the Patwari. 7. The petitioner states that when the Tahsildar issued notice under Section 7 of the Land Encroachment Act, in the month of June, 1982 calling upon to explain why the encroachment made by him in an extent of Acs.2-00 in Sy.No. 102/1, he submitted his reply, and thereafter all further proceedings were dropped. The petitioner submits that when the Mandal Revenue Officer, Golconda, issued similar notice on 2-9-1993 in respect of an extent of Ac.1-29 guntas, impugned in this writ petition, he submitted his reply, but the respondent-revenue authorities without passing final orders thereon, have threatened the petitioner of eviction from the land in occupation, and in those circumstances the petitioner filed the present writ petition and obtained orders of status quo from this Court. 8. The petitioner states that he had also filed a suit in O.S. No. 1690 of 1998 on the file of the IV Junior Civil Judge, City Civil Court at Hyderabad and obtained an order of injunction against HUDA when they tried to interfere with the possession and enjoyment of the petitioner's land on the ground that the Government had allotted the said land to them. It is stated that claim of HUDA is on the basis of panchanama of delivery of possession by the Government, supported by a plan. The petitioner states that the plan produced by HUDA discloses that the land allotted to HUDA was under encroachment of the petitioner, and according to the petitioner, the Government could not have allotted the land to HUDA without evicting the petitioner from the said land. It is stated that in the suit, HUDA admitted that the petitioner is cultivating the land. The petitioner states that as the land is located between two hillocks forming into a valley, it is not suitable for developing into plots, and this can be ascertained by appointing an Advocate Commissioner. 9. According to the petitioner, once grant was made by the erstwhile regime of H.E.H. the Nizam from the Sarfekhas land, the same cannot be claimed by the Government as upon merger of Nizam State with the Indian territory, the land continued to remain with the grantee. 10. The petitioner states that there is serious dispute with respect to title of the land for rival claims originated since the regime of Nizam and thereafter, the State Government has raised the dispute. The petitioner states that the Government cannot adopt dubious methods for dispossessing the petitioner from the land in his occupation by invoking the provisions of the Land Encroachment Act. The petitioner states that if any right is to be exercised by the Government against the person who is in possession of the land for more than a century with respect to his title, the remedy of the Government, if any, is to file suit for declaration of title and seek recovery of possession, and the Government certainly cannot invoke the provisions of the Land Encroachment Act for his eviction from the land even if the said land is a Government land. The petitioner states that even assuming without admitting that the Government has right and title to the land which is in the possession of the petitioner, the same stood extinguished by reason of efflux of time for the petitioner was in possession of the land for more than 30 years and he had perfected his title to the land by adverse possession. 11. On behalf of the Government, the Mandal Revenue Officer filed counter-affidavits to the affidavit and better affidavit of the petitioner stating that the land in an extent of Acs.274-31 guntas in Sy.No. 102/1 of Hakeempet Village is a Government poramboke land. The Town Survey was conducted during 1964 to 1969 and finally it was notified in 1979 vide Gazette No. 13, dated 29-10-1979 that the land is a Government
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

poramboke land. The land which the petitioner is claiming to be in possession forms part of T.S. No. 14, Block 'A' in Ward No. 12 in an extent of 25,216 Sq. mts., and correlates to Revenue Sy.No. 102/l/P of Hakeempet Village and is classified as Government poramboke. 12. The counters deny the claim of the petitioner that he is the owner and possessor of the land. It is stated that as per the Town Survey Records, the land which the petitioner claims to be in his occupation is shown as Government land. The land was not assigned to the petitioner, and therefore, he cannot claim to have acquired any right or derived any title in respect thereof. The claim of the petitioner that the Tahsildar, Hyderabad Urban, had issued Pass Book, is denied. It is stated that the petitioner had encroached Government land in an extent of Ac.1-20 guntas and cultivating the same for which Sivai Jamabandi (penalty) is being charged every year, and the same will not confer any right or title to the petitioner. 13. The claim of the petitioner that he has submitted his reply to the impugned show-cause notice dated 2-9-1993 issued by the Mandal Revenue Officer, and that his name has been shown as owner in the Patta Pass Book, is denied. It is stated that inasmuch as the petitioner has encroached Government land, action for his eviction under the provisions of the Land Encroachment Act, had been initiated against him. As the petitioner had failed to submit his explanation to the impugned show-cause notice dated 2-9-1993, a final notice under Section 6 of the Land Encroachment Act, was issued to the petitioner on 20-9-1993. When the petitioner failed to receive the said notice, the same was affixed on the spot by the Village Administrative Officer and Village Servant. After lapse of five months after issuance of the final notice, the petitioner on 8-2-1994, filed the present writ petition, and by the time the petitioner approached this Court, the petitioner was already dispossessed from the land in question. 14. In the suit O.S. No. 1690 of 1998, the petitioner made only HUDA and not the Government a party-respondent. In the interim order passed by the Trial Court in the said suit, it was observed that though the petitioner filed suit claiming an extent of Acs.4-16 guntas, he in fact, was in possession of only an extent of Ac.1-20 guntas and that too by reason of the interim orders passed by this Court in this writ petition, as admitted by HUDA. It is stated that the revenue receipts produced by the petitioner are only from 1973 onwards, while he claims that his ancestors were in possession and enjoyment of the land in his possession for the last more than 100 years, which is incorrect. The record pertaining to the notice issued under Section 7 of the Land Encroachment Act, dated 8-6-1982 is not traceable. 15. HUDA which got impleaded itself as party-respondent to the writ petition filed counters to the affidavit and better affidavit of the petitioner stating that out of an extent of Acs.274-31 guntas in Sy.No. 102/1 of Hakeempet Village, an extent of Acs.6-12 guntas of land, including the land, which the petitioner claims to be in occupation, was allotted to HUDA under a valid panchanama during 1993-94, and consequent upon allotment, HUDA developed the land into residential plots and put them to auction. The physical possession of the plots was even delivered to some of the auction purchasers, and that most of the developmental work has already been completed, and in view of the orders of status quo passed by this Court in an extent of Ac.1-20 guntas, they are unable to take further action in the matter in respect of the plots developed in the said extent of land. 16. The ex parte injunction granted by IX Junior Civil Judge, City Civil Court, Hyderabad, in the suit O.S. No. 1690 of 1998 filed by the petitioner for perpetual injunction claiming easementary right over an extent of Acs.4-16 guntas was vacated, and thereagainst, the petitioner moved the matter in appeal before the IV Additional Chief Judge, City Civil Court, who by his orders dated 24-8-1998 directed the parties to maintain status quo over an extent of Ac.1-20 guntas. 17. It is further stated that the writ petition raises several disputed questions of fact for the petitioner in effect is seeking a declaration of his title to the property by way of adverse possession which cannot be gone into in a proceeding under Article 226 of the Constitution of India. It is stated that as against the impugned show-cause notice issued by the Mandal Revenue Officer, under Section 7 of the Land Encroachment Act, the
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

petitioner had an effective alternative remedy by way of appeal before the Revenue Divisional Officer under Section 10 of the Land Encroachment Act, but the petitioner has not availed the same, and in those circumstances, the Mandal Revenue Officer, passed final orders under Section 6 of the Land Encroachment Act, for summary eviction of the petitioner, and in fact, evicted him, and therefore, the writ petition is not maintainable. Legal submissions 18. Heard the learned Counsel for the petitioner, the learned Government Pleader for Revenue for the Government and the learned Standing Counsel for the HUDA. The petitioner along with the better affidavit filed xerox copies of certain documents, including Patta Pass Book and revenue receipts etc., which according to him prove his title to the property and evidences his long continuous possession of the land. 19. The learned Counsel for the petitioner submits that the land admeasuring an extent of Acs.4-16 guntas in Sy.No. 102/1 of Hakeempet Village, Golconda Mandal, was in possession of his ancestors for the last more than 100 years, and that one of the family members, namely Smt. Sadamma, who was serving Maisamma Temple, which is located in the land in question, was declared as Jogan, and on an application made by her, H.E.H. the Nizam granted the land to her vide orders of the Collector in File No,22, dated 13 Isfan-dah 1355 Fasli i.e., in 1945. 20. In June, 1982 when the respondent-revenue authorities, issued notice under Section 7 of the Land Encroachment Act, calling upon him to show-cause as to why he should not be evicted from an extent of Acs.2-00 of land, encroached by him, the petitioner states that he submitted his reply, and thereafter proceedings were dropped. When the Mandal Revenue Officer issued similar notice on 2-9-1993, the learned Counsel submits that though the petitioner submitted his reply, the respondent-revenue authorities without considering the same and without passing final orders, have sought to evict the petitioner from the land in question, and therefore, the petitioner has filed the present writ petition assailing the show-cause notice dated 2-9-1993. 21. The learned Counsel for the petitioner submits that inasmuch as after merger of Hyderabad State with the Indian Union, the land in question granted by H.E.H. the Nizam in favour of Smt. Sadamma, continued to be in the possession of the petitioner, the respondent-revenue authorities could not have treated the petitioner as an encroacher of Government land, and could not have initiated steps for his eviction under the provisions of the Land Encroachment Act, and therefore, according to the petitioner, the impugned show-cause notice, issued by the respondent-revenue authorities, is illegal and arbitrary. 22. The learned Counsel for the petitioner submits that having regard to the continuous uninterrupted possession of the petitioner of the land in question, and prior to him by his ancestors, the petitioner has perfected his title to the land by way of adverse possession, and even assuming without admitting that the respondent-revenue authorities have any right over the land in question or have title thereto, their remedy, if any, is to approach the competent Civil Court and seek declaration of their title and seek recovery of possession, but certainly they cannot invoke the provisions of the Land Encroachment Act, to evict the petitioner from the land in question. In support of his submission that the remedy of the respondent-revenue authorities, if any, is to approach the competent civil Court and establish their right or title to the land in question, the learned Counsel for the petitioner placed strong reliance on the judgment of the apex Court in Government of A.P. v. T. Krishna Rao, . 23. The learned Counsel for the petitioner in support of his contention that inasmuch as the petitioner had perfected his title to the land in question by way of adverse possession, he cannot be treated as an encroacher and be evicted invoking the provisions of the Land Encroachment Act, he placed reliance on the judgment of the Division Bench of this Court in Goundla Venkaiah v. Mandal Revenue Officer, Ranga Reddy District, (DB). According to the learned Counsel for the petitioner when the petitioner was in possession of the land by
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

cultivating the same, the respondent-revenue authorities could not have allotted the land to HUDA without evicting the petitioner from the land, and therefore, the allotment made to HUDA is bad and illegal. 24. Per contra, the learned Government Pleader for Revenue contended that the land in question, which forms part and parcel of an extent of Acs.274-31 guntas of land in Sy.No. 102/1 of Hakeempet Village, Golconda Mandal, is classified as Government poramboke land. Inasmuch as the petitioner had encroached the Government land, the revenue authorities have initiated steps for his eviction from the said Government land by issuing the impugned show-cause notice under Section 7 of the Land Encroachment Act, but the petitioner failed to submit his reply to the said notice, and in those circumstances, the revenue authorities passed final orders under Section 6 of the Land Encroachment Act, for summary eviction of the petitioner on 20-9-2003, and even evicted the petitioner. The petitioner after lapse of five months after his dispossession from the land in question, has filed the present writ petition assailing the impugned show-cause notice, issued under Section 7 of the Land Encroachment Act, which is not maintainable. The claim of the petitioner that he is in possession of an extent of Acs. 4-16 guntas of land, is incorrect, and this is evident from the order passed by the civil Court in the suit filed by the petitioner against HUDA wherein it was observed that the petitioner is in possession of an extent of only Ac.1-20 guntas. Be that as it may, the said order was subsequently vacated, and in the appeal filed thereagainst, orders of status quo were passed. The learned Government Pleader for Revenue denied the contention of the petitioner that he is in possession of the land for more than 100 years and that he had perfected his title thereto by way of adverse possession. In support of his submission that perfecting of title by adverse possession is a mixed question of law and fact, requiring determination on the facts of each case, the learned Government Pleader for Revenue, placed reliance on the judgment of the apex Court in Konda Lakshmana Bapuji v. Government of Andhra Pradesh, 2002 (2) ALD 56 (SC). The learned Government Pleader for Revenue placed reliance on the judgment of a Division Bench of this Court in Pydi Hariya v. Revenue Divisional Officer, Kandukuru, (DB), in support of his argument that mere issuance of Patta Pass Book under the Record of Rights does not confer any title to the property. In support of the proposition that mere entries in the record of rights do not confer title on the person, the learned Government Pleader for Revenue, relied on the decision of a learned Single Judge of this Court in Sammeta Tulasi Ram v. State of A.P., . 25. The learned Government Pleader denied the contention of the petitioner that the land in question is not a Government land and that the Government should approach the competent civil Court for recovery of possession. In support of his contention that the Government cannot be compelled to file civil suit for recovery of possession of the land belonging to them, and that it is for the party pleading long continuous uninterrupted possession to establish his title to the said property, he placed reliance on the judgment of a learned Single Judge of this Court in Raidurg Co-operative House Building Society Ltd. v. Government of A.P., [This judgment was confirmed in W.A. Nos. 1347 of 2003 and Batch dated 13-8-2003, and further appeal before the Supreme Court in S.L.P. Nos. 19763-19766 of 2003, was dismissed] and R. Jayasimha Reddy v. Government of A.P., . He, thus contended that the writ petition is liable to be dismissed. 26. The learned Standing Counsel appearing on behalf of HUDA submitted that the Government had allotted an extent of Acs.6-12 guntas of poramboke land to them, including the land claimed by the petitioner as belonging to him, under a valid panchanama in 1993. Consequent upon allotment of the land, HUDA developed the land into plots and auctioned them, and subsequently had also put some of the auction purchasers into possession, except the plots carved out from an extent of Ac.1-20 guntas in respect of which there are status quo orders. Inasmuch as the Government had allotted the land belonging to them under a valid panchanama, the allotment cannot be challenged by the petitioner as being bad and illegal, and more so when the allotment was made to HUDA after evicting the petitioner. 27. The learned Standing Counsel submitted that this writ petition filed by the petitioner assailing a mere show-cause notice issued under Section 7 of the Land Encroachment Act, is not maintainable, and in support of this -submission, he placed reliance on the judgment of the apex Court in State of U.P. v. Brahm Datt Sharma, and judgments of the Division Bench of this Court in Special Officer, ULC v. M. Vijayalakshmi,
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(DB) and Director of Settlements v. Neerupaka Rama Krishna, (DB). 28. The learned Standing Counsel submits that according to the own version of the petitioner, there are serious disputed questions of fact involved in the writ petition with respect to his title to the property. The petitioner in the guise of challenging the show-cause notice in this writ petition, in effect, is seeking a declaration of his title to the property, which cannot be permitted in a proceeding under Article 226 of the Constitution of India. In support of his submission that serious disputed questions of fact cannot be gone into in a proceeding under Article 226 of the Constitution of India, the learned Standing Counsel placed strong reliance on the judgments of the Apex Court in Amar Singhji v. State of Rajasthan, , Union of India v. T.R. Varma, , New Satgram Engg. Works v. Union of India, , State of Rajasthan v. Bhawani Singh, , State of M.P. v. M. V. Vyavsaya, and Visakhapatnam Port Trust v. Ram Bahadur Thakur Private Limited, and the judgment of the Division Bench of this Court in Union of India v. Mohd. Mohiuddin, 2000 (6) ALT 551 (DB). 29. The learned Standing Counsel further submits that inasmuch as against the impugned show-cause notice issued by the Mandal Revenue Officer under Section 7 of the Land Encroachment Act, the petitioner has got an effective alternative remedy by way of appeal before the Revenue Divisional Officer under Section 10 of the Land Encroachment Act, this writ petition is not maintainable. Submitting so, the learned Standing Counsel prayed for dismissal of the writ petition. Points for consideration 30. In the above backdrop of the pleadings and the rival submissions made on behalf of the contesting parties, the following points do arise for consideration in this writ petition: 1. Whether writ petition against a mere show-cause notice is maintainable? 2. Whether disputed questions of fact relating to the title of a property can be gone into in a proceeding under Article 226 of the Constitution of India? 3. Whether on the basis of the averments made in the affidavits and counter-affidavits it can be said that the petitioner had perfected his title to the property by reason of adverse possession? Point No. 1: Whether writ petition against a mere show-cause notice is maintainable? 31. The petitioner, admittedly, has filed this writ petition assailing the show-cause notice dated 2-9-2003 issued by the Mandal Revenue Officer, under Section 7 of the Land Encroachment Act, calling upon him to explain as to why he should not be evicted from the land in question, which according to the respondent-revenue authorities is a Government poramboke land. The contours of judicial review to interdict a mere show-cause notice is very narrow and is limited to the ground of non-existence of jurisdiction on the authority who issued the show cause notice. Unless it is shown by the party challenging the show-cause notice, that the authority who issued the show cause notice has no jurisdiction to issue it, this Court would not interfere, and would be rather slow to interfere in exercise of its jurisdiction under Article 226 of the Constitution of India, at the stage of show-cause notice having regard to the fact that the very purpose of issuing a show cause notice, which is to provide an opportunity of hearing to the party before a decision affecting his interests is taken against him, would be defeated if this Court interdicts a show-cause notice. A reference on this score be made to some of the decisions of Apex Court as well as this Court. 32. In State of U.P. v. Brahm Datt Sharma (supra), the Government of Uttar Pradesh assailed the order of the High Court of Allahabad quashing the show-cause notice issued by them to the employee, who was employed
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as an Executive Engineer in the Irrigation Department, calling upon him to show-cause as to why his pension and gratuity be not forfeited, before the Apex Court. The Apex Court allowing the appeal, held thus: When a show-cause notice is issued to a Government servant under a statutory provision, calling upon him to show-cause, ordinarily the Government servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show-cause notice is to afford opportunity of hearing to the Government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the Government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. 33. In Special Officer, ULC v. M. Vijayalakshmi (supra), the show-cause notice issued by the Government under Section 34 of the Urban Land (Ceiling and Regulation) Act, 1976, calling upon the declarant to show-cause as to why the order of the Special Officer and Competent Authority, determining the declarant as non-surplus landholder should not be set aside and a de novo enquiry initiated. The writ petition filed by the declarant assailing the said show-cause notice was allowed by a learned Single Judge holding that the same was issued without jurisdiction. On appeal, a Division Bench of this Court, set aside the order of the learned Single Judge. While allowing the appeal filed by the Government, it was held: Scope of judicial reviewability is extremely limited and the High Court would be rather slow and loath to intervene at this stage of proceedings since the authority ought to be given a free hand and a full play in the matter of enquiring into the circumstances which prompted the authority concerned to issue the show-cause notice. Ordinarily, a writ petition is not maintainable against a show-cause notice inasmuch as, when a show-cause notice is issued, the party gets an opportunity to place his case before the authority concerned, and there are elaborate procedures by way of appeal and/or revision against such order passed in such proceedings. 34. A Division Bench of this Court in Director of Settlements v. Neerupaka Rama Krishna (supra), while allowing the review petition filed against its judgment dismissing the writ appeal, filed against the order of a learned Single Judge in writ petition, filed assailing the show-cause notice issued to the petitioner under Section 5(2) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948, calling upon him to show-cause as to why the patta granted to him should not be held irregular and liable for cancellation, it was held: At the stage of show-cause notice, the jurisdiction under Article 226 of the Constitution of India is not attracted. The exercise of power of judicial review is in respect of 'decision' brought before the Court. At the stage of show-cause notice the quasi-judicial authority or administrative authority is yet to take a 'decision', and therefore, in exercise of power under Article 226 of the Constitution of India at the stage of show-cause notice is generally, opposed to the doctrine of judicial review. If every show-cause notice is interdicted by this Court, a citizen may be deprived of other remedies under law, for a finding of fact as well as finding of law given by this Court binds all authorities in the State. On the other hand, if the quasi-judicial authority is allowed to make a decision pursuant to a show-cause notice, the citizen who is aggrieved as well as this Court would be in a more better position by reason of a situation that quasi-judicial authority or administrative authority must have appreciated and evaluated the facts of the case and given appropriate findings. The principle that a writ petition is not ordinarily maintainable against show-cause notice is axiomatic. 35. This Court in K.M. Saifullah v. A.P. State Wakf Board, , following the law laid down in the judgement of the Apex Court in State of U.P. v. Brahm Datt Sharma (supra) and the judgement of the Division Bench of this Court in Special Officer, ULC v. M. Vijayalakshmi (supra) held that no writ petition under Article 226 of the Constitution of India against the issue of show-cause notice, is not maintainable.
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36. In the instant case, though the petitioner contends that he has submitted his explanation to the show-cause notice dated 2-9-2003, the same is denied by the respondent-revenue authorities. Be that as it may, it is the specific case of the respondents that as the petitioner failed to submit his explanation to the show-cause notice dated 2-9-1993, the Mandal Revenue Officer had passed final orders on 20-9-1993 under Section 6 of the Land Encroachment Act, for summary eviction of the petitioner, and when the petitioner refused to receive the said order, the same was affixed on the spot, and thereafter, the respondent-revenue authorities evicted the petitioner from the land, and that the respondent-revenue authorities having taken possession of the land, have allotted the same to HUDA along with some other land. The fact that the respondent-revenue authorities had allotted the land to HUDA is admitted to by them, and it is submitted by them that consequent upon allotment of the land, they had developed the land into plots and having sold them to the auction purchasers, even put them in possession, and that in view of the orders of status quo in respect of an extent of Ac. 1-20 guntas, they are unable to take further action in respect of the plots carved out from the said land. 37. Though the petitioner had filed certain xerox copies of the Patta Pass Book and revenue receipts etc., in support of his contention that the land was allotted to Smt. Sadamma Jogan and that he is in continuous possession thereof, but having regard to the stand taken by the respondent-revenue authorities that the land which the petitioner is claiming is a Government poramboke land, it would not be proper for this Court to look into the same. Indeed, the petitioner ought to have produced all the xerox copies of the documents, which he filed along with the better affidavit, before the Mandal Revenue Officer, to enable him to come to a conclusion whether or not the land belonged to him or the Government. But the petitioner, leave alone producing these documents before the Mandal Revenue Officer, has not even chosen to respond to the show-cause notice issued under Section 7 of the Land Encroachment Act, and kept quiet till the respondent-revenue authorities passed final orders for his summary eviction under Section 6 of the Land Encroachment Act, and eventually the respondent-revenue authorities even evicted the petitioner from the land in question. It is required to notice that the petitioner has neither challenged the final notice nor the consequential action of the respondent-revenue authorities in evicting him from the land in question. In that view of the matter, this writ petition, which is filed assailing the show-cause notice is not only not maintainable, but is also liable to be dismissed having regard to the developments that have taken place subsequent to the filing of the writ petition, which have been stated above. That apart, though against the impugned show-cause notice, issued by the Mandal Revenue Officer under Section 7 of the Land Encroachment Act, the petitioner had an effective alternative remedy of appeal, has not chosen to avail such a remedy, and in those circumstances, the respondent-authorities after passing final orders for summary eviction of the petitioner under Section 6 of the Land Encroachment Act, evicted the petitioner from the land in question, and on this ground also, the writ petition is liable to be dismissed. Point No. 1 is answered accordingly. Point No. 2: Whether disputed questions of fact relating to the title of a property can be gone into in a proceeding under Article 226 of the Constitution of India? 38. To consider this question, and for an easy appreciation of the facts, a comparable reference to the pleadings made by the petitioner in the affidavit filed along with the writ petition and the better affidavit filed during the course of hearing of the writ petition, may be made in a tabular form: __________________________________________________________________ The stand taken by the petitioner In the affidavit filed along with the writ petition. The stand taken by the petitioner in the better affidavit filed during the course of hearing of the writ petition. The petitioner claimed to be owner and possessor of land in an extent of Ac, 1-20 guntas.
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

The petitioner claimed to be the absolute owner and possessor of land in an extent of Ac. 4-16 guntas. The petitioner claimed that his source of title to the property has been lost in antiquity. The petitioner claimed that his family was in possession of the property for the last more than 100 years. The petitioner does not mention the status of his family. The petitioner states that he belongs to Jogan family and that the then Tahsildar of H.E.H. the Nizam had granted Patta to Smt. Sadamma Jogan, in recognition of services to Maisamma Temple, to which she was dedicated. The petitioner claimed that there is no dispute about his right, title and possession of the Property, The petitioner states that there is serious dispute with respect to title of the property and rival claims originated right from the regime of H.E.H. the Nizam and now from the Government of Andhra Pradesh, The petitioner claimed that he perfected his title to the property by reasons of his long continuous possession for earlier to him, his ancestors were in possession. The petitioner claimed that he perfected his title to the property by adverse possession, and that even assuming for a moment without admitting that the State has any right or title to the land, the same stood extinguished by e f f l u x o f t i m e o f m o r e t h a n 3 0 y e a r s . __________________________________________________________________ 39. A reading of the pleadings made in the affidavit and better affidavit, filed by the petitioner along with the writ petition and during the course of hearing of the writ petition, and a perusal of the above table, would disclose that the pleadings are inconsistent with and run contrary to each other. In the affidavit filed along with the writ petition, the petitioner stated that he is the owner and possessor of an extent of Ac.1-20 guntas, and that there is no dispute with respect to his right and title to the land in his possession, while in the better affidavit, filed during the course of hearing of the writ petition, he claimed that he is the absolute owner and possessor of an extent of Acs.4-16 guntas, but submits that there is serious dispute as to title of the property and that several rival claims originated since the time of H.E.H. the Nizam and now from the Government of Andhra Pradesh. In the affidavit filed along with the writ petition, the petitioner stated that his title to the land is lost in antiquity for prior to his coming into possession of the land, his forefathers were in possession of the land, and that he had perfected his title thereto by reason of his long continuous possession, while in the better affidavit filed along with the writ petition, the petitioner claimed that the land was in occupation of his family for more than 100 years and they were cultivating the same, that he belongs to Jogan family and that on the application made by Smt. Sadamma Jogan, who was rendering service to Maisamma Temple, the H.E.H., the Nizam granted patta to the land during 1945. He, however, submits that even assuming for a moment without admitting that the Government has any right over the land or title thereto, the same stood extinguished by efflux of time and that he had perfected his title to the land by way of adverse possession. 40. So from the above narration of! facts, it becomes crystal clear that the petitioner has not only taken inconsistent pleas, but has himself made a candid admission that there is a serious dispute with respect to his title to the land. It is long well settled by a plethora of decisions that where there are serious disputes with respect to title of a property, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, does not decide such disputed questions, for such questions have to be decided upon leading of evidence by the contesting parties, and unless and until the contesting parties lead evidence in support of their respective claims, such disputed questions cannot be decided or gone into. Therefore, the remedy of the parties, if any, is to approach the competent civil Court and get their title disputes to the property settled by leading evidence in support of their respective claims.
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

The Apex Court in Amarsinghji v. State of Rajasthan (supra), held: With reference to one of the villages forming part of this estate, Jorpura, a special contention was put forward by Mr. Naunit Lal that it was dedicated for worship of the Devi, and was therefore within the exemption enacted in Section 20. A document is also produced in support of this claim. The respondent claims that under this deed the grant is not in its entirety in favour of the Deity, but the petitioner disputes it. This is not a question which can be determined in this petition. It will be open to the petitioner to establish in appropriate proceedings that the village or any petition thereof is within the exemption of Section 20 of the Act. 41. In the case on hand, the petitioner to prove his contention that the land was assigned to Smt. Sadamma Jogan by H.E.H. the Nizam and that he was in continuous possession of the land and had acquired title to the property by way of adverse possession, though produced xerox copies of certain documents, the same cannot be looked into, and more so when the respondent-revenue authorities contended that the land which the petitioner claims to be in his continuous possession, was recorded as a Government poramboke land in the survey made during 1964 to 1969, which was finally notified in the Gazettee on 29-10-1979. Be that as it may, the question whether or not the land which the petitioner claimed to be in his long continuous possession was assigned to Smt. Sadamma Jogan by H.E.H; the Nizam and belongs to him or whether the land belongs to him or is a Government poramboke land or whether or not the xerox copies produced by the petitioner, which according to the petitioner reveal his title to the land, or whether or not the xerox copies of the receipts produced by the petitioner indicate payment of tax or penalty (Sivai Jamabandi) paid by him, being disputed questions of fact, cannot be decided in a writ petition under Article 226 of the Constitution of India. Reference in this regard be made to the decision of the Apex Court in Union of India v. T.R. Varma (supra), wherein it was held that where there is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence, it is not the practice of Courts to determine it in a writ petition. To the very same effect is another decision of the Apex Court in New Satgram Engg. Works v. Union of India (supra), wherein it was held: The question whether the workshop called the engineering unit was "situate in, or adjacent to", the coal mine and was "substantially" used for purposes of the mine as well as the question whether the Technical Director's Bungalow and the Guest House were "solely" used for residence of officers and staff of the mine and, therefore, fall within the definition of "mine" as contained in Section 2(h) of the Nationalisation Act, held could not be decided in proceedings under Article 226 of the Constitution and the High Court was justified in observing that the dispute relating to the properties in question raised a "serious question of title" and that the parties should get their rights adjudicated upon a Civil Court. 42. The petitioner, in this writ petition, though sought to challenge the notice, in effect, he is seeking declaration of his title to the land in his possession, which cannot be granted in a proceeding under Article 226 of the Constitution of India. In this regard, it would be apposite to refer to the decision of the Apex Court in State of Rajasthan v. Bhawani Singh (supra), wherein it was held as follows: Having heard the Counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, * a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition. 43. In State of M.P. v. M.V. Vyavsaya (supra), the apex Court observed that where there is statutory violation, interference would be permissible even in the case of a contract but not where the relevant facts are disputed and which dispute calls for an elaborate enquiry which cannot be conveniently done by the High Court in a writ petition. The apex Court further held that the proper course for the High Court was to dismiss the writ petition at the very inception when it was brought to their notice that it involved disputed question of fact. In the instant case, as stated and admitted to by the petitioner himself, there are serious disputed questions relating to his title, and as such, the petitioner has no remedy under Article 226 of the Constitution of India,
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

and his remedy, if any, is to approach the competent Civil Court and agitate his grievance. Therefore, the writ petition filed by the petitioner, which undisputedly raises disputed questions of fact, is liable to be dismissed. 44. A reference in this context be also made to the observations made by a learned single Judge of this Court in Raidurg Co-operative House Building Society Ltd. v. Government of A.P. (supra), which are to the following effect: It is axiomatic that while exercising the power of judicial review under Article 226 of the Constitution of India, this Court would not decide disputed questions of title. Whether or not a person has title to the land? Whether or not the Jagirdar validly granted patta in favour of Chandni Begum! And Whether or not the persons have been in possession of the land, are disputed questions of fact. When the Government contends that the land in question is rocky terrain and not fit for cultivation and has been continuously in possession of the land, is it permissible for this Court to go into the question of title? Though the learned Counsel for the petitioners contends that the petitioners are not seeking declaration of title, while praying for a writ of certiorari to quash the impugned order, they are, in effect, seeking declaration of title. The effect of quashing the orders would be setting at naught the observations of the Government that the land in question is Government poramboke land as per survey and settlement records. 45. In the instant case also, the petitioner though challenged the notice issued under Section 7 of the Land Encroachment Act, he in effect, is seeking declaration of his title to the land, which cannot be granted. 46. It is well settled that mere issuance of Patta Pass Book under the Record of Rights do not confer any right on a person to claim that the land belongs to him for the reason that a Patta Pass Book is merely issued for the purposes mentioned therein (See Pydi Hariya v. Revenue Divisional Officer, Kandukuru (supra)). It is equally well settled that the entries in record of rights do not confer title on a person, and in this context, it would be appropriate to a judgment of a learned Single Judge of this Court in Sammeta Tulasi Ram v. State of A.P., , wherein it was held: The entries in the revenue records do not confer any valid title to the person in whose name the entries are made against the person who acquired valid title according to law. Unless the parties adopt one of the modes provided under the Transfer of Property Act or any other law for the time being in force, the claim regarding the title of the 4th defendant cannot be recognized, as it is not valid under law. 47. Though the petitioner filed xerox copies of the Patta Pass Book and certain entries in the revenue records, the same will not confer any title on him, and if there is any challenge to his title, the same will have to be adjudicated in a properly constituted civil suit. 48. In view of my findings that disputed questions of fact have to be adjudicated in properly constituted suit, another ancillary question that arises for consideration is whether the Government which is claiming that the land in possession of the petitioner as belonging to them or the petitioner who was threatened to be dispossessed by the Government on the ground that the land in his possession belongs to them and is classified as a Government poramboke land, has to approach the competent Civil Court for declaration of title to the property. The contention of the petitioner that having regard to his long standing possession of Government land, he cannot be treated as a land grabber or encroacher thereof, and if the Government contends that the land possessed by the petitioner is a Government land, the remedy of the Government, if any, is to file a civil suit and seek recovery of possession and that the respondent-revenue authorities are not entitled to take recourse to the provisions of the Land Encroachment Act, for his encroachment, is misplaced. The law is well settled that the person claiming long uninterrupted possession of Government land, has to establish his title to the same by instituting a civil suit before the competent Court, and that the Government is entitled to avail any of the remedies available under the law for removing the unauthorized occupants, including by invoking the provisions under the Land Encroachment Act, and the Government cannot be compelled to recover the land by filing a suit against the person, who is in unauthorized occupation of such
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

Government land. In this context, a reference to the judgment of a learned Single Judge of this Court in Raidurg Co-operative House Building Society Ltd. v. Government of A.P. (supra), wherein it was held: The State has an option to avail any of the remedies available under law including the Land Encroachment Act. When the land was surveyed as Government poramboke land and Revenue records show as such, the petitioners cannot allege long standing occupation when pattas given to Chandni Begum and Sonabai are not genuine and incorrect. Merely placing reliance on some communications among various officials, it cannot be said that there is a bona fide and genuine dispute of title. In a given case even if there is evidence of showing the possession of a person, it cannot be said that there is bona fide dispute. Long standing possession is one of the factors and the same cannot be the only factor to compel the Government to go and avail remedy of civil suit. It must be remembered that by a catena of decisions, it is well settled that only entries in the Revenue records do not confer any title. Nonetheless, if revenue survey is conducted as required under law and in accordance with the provisions, Sethwar can itself be evidence of title. Petitioners have not produced any Revenue records nor it is their case that after the alleged bifurcation of Raidurg jagir village into Raidurg Noukhalsa and Raidurg Panmaqtha, the competent authority entered the petitioners' names in the relevant columns of pahanis and that they or their predecessors paid land revenue to the Government. In this background, whether the Government should be compelled to file a civil suit or take such necessary action as is required and permissible, cannot be a subject-matter of mandamus. When the Government had choice and options under law, it is for the Government to choose one such option for protecting their land in public interest having regard to constrains of time, litigation expenditure and the nature of evidence the Government have with them. 49. In the instant case, it is the case of the Government that the land which the petitioner claims to be in his possession, was recorded as Government poramboke land in the revenue records in the survey made during 1964 to 1969 and the same was finally notified in the Gazette on 29-10-1979 and that the petitioner was shown as an unauthorized occupant and Sivai Jamabandi (penalty) was being collected from him. When such is the case of the Government, it is for the petitioner to prove his title to the property by filing a suit for declaration before the competent Civil Court having jurisdiction. Therefore, the contention of the petitioner that inasmuch as he is in possession of the land, the Government cannot evict him therefrom, and it has to approach the competent Civil Court for his eviction and it cannot take recourse to the proceedings under the Land Encroachment Act, is not well-founded and is rejected. 50. A person in occupation of Government land claiming long standing possession cannot contend that the revenue authorities have no right to initiate action against him after long lapse of time, is no more res integra. A learned Single Judge of this Court R. Jayasimha Reddy v. Government of A.P. (supra), while considering similar question as is involved in this writ petition held: In case of encroachment of Government land, when such possession becomes objectionable, it is always open to the revenue authorities to initiate action under the Land Encroachment Act. A person who is in possession of Government land and claiming long standing occupation can never be allowed to urge that the revenue authorities cannot exercise power after long lapse of time. That the power should be exercised within a reasonable time has no application for exercise of power under the Land Encroachment Act. By reason of Section 2 of the Land Encroachment Act, all the vacant lands, roads, streets, rivers, rivulets, waste lands, porambokes etc., absolutely vest in the State notwithstanding the fact that they are in possession of encroachers. Doctrine of eminent domain presupposes that sovereign State is absolute owner of all the lands under its rein. 51. As long as a person continues to be in illegal and unauthorized possession of Government land, the Government is always at liberty to avail the multi-fold options available to it for eviction of such illegal and unauthorized occupants from the Government land, and no embargo can be placed on its options, and it is not open for the person who is in unauthorized occupation of Government land to contend that the Government
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

for his removal from the unauthorized occupation has to take recourse only to the remedy of civil suit and not the procedure which is provided for under various legislations for dealing with and removal of such unauthorized occupants of the Government land. The petitioner having been found to be an illegal and unauthorized occupant of the Government poramboke land, the Government has chosen the option of taking steps for eviction of the petitioner under the Land Encroachment Act, and no exception can be taken to such an action of the Government, which already stood concluded by the time the petitioner filed the present writ petition. If such a contention is to be accepted, the numerous legislations brought out by the Government for dealing with the unauthorized occupants of Government land and for their removal therefrom, would become superfluous, and every person who is in unauthorized occupation of Government land would invariably contend that the Government for their eviction has to file a civil suit. In that view of the matter, reliance placed by the learned Counsel for the petitioner on the judgment of the Apex Court in Government of A.P. v. T. Krishna Rao (supra), in support of his contention that as the Government is disputing the petitioner's title, the Government should approach the competent Civil Court and seek recovery of possession, is of no avail to him, and more particularly when a learned Single Judge of this Court in Shivalingappa v. State of A.P., 1988 (1) ALT 716, having considered the effect of the said decision and another decision of this Court in Special Deputy Collector v. Konda Lakshman Bapuji, 1984 (1) APLJ 219 (DB), observed that the said decisions did not lay down any general rule that whenever an encroacher is sought to be evicted from the Government land, the Government should be compelled to go before the Civil Court. It was further observed that if there is evidence that Government is the owner of the land, the Court should not conclude that the petitioner raised bona fide claim about his possession. In view of this legal position, the petitioner cannot be allowed to contend that the Government should approach the competent Civil Court for recovering possession from him. Point No. 3: Whether on the basis of the averments made in the affidavits and counter-affidavits it can be said that the petitioner had perfected his title to the property by reason of adverse possession? 52. Merely on the basis of averments in the affidavit and counter-affidavits, it cannot be said whether or not the petitioner had perfected his title to the property by way of adverse possession. Perfecting of title by reason of adverse possession is essentially a mixed question of law and fact, and has to be decided on the facts of each case. In the instant case, the petitioner has taken inconsistent pleas as regards the length of his possession. The Apex Court in Konda Lakshmana Bapuji v. Government of Andhra Pradesh (supra), having considered the question of adverse possession held: The question of a person perfecting title by adverse possession is a mixed question of law and fact. The principle of law in regard to adverse possession is firmly established. It is well-settled proposition that mere possession of the land, however, long it may be, would not ripe into possessory title unless the possessor has 'animus possidendi' to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be show to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are show to exist. The length of possession to perfect titles by adverse possession as against the Government is 30 years. 53. Reliance placed by the learned Counsel for the petitioner on the judgment of the Division Bench of this Court in Goundla Venkaiah v. Mandal Revenue Officer (supra), to the effect that inasmuch as the petitioner had perfected his titled to the land by way of adverse possession, he cannot be treated as a land grabber, and therefore, no recourse to the proceedings under the Land Encroachment Act, can be taken for his eviction from the land, does not help him in any manner. In the said case, proceedings took place before the revenue
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S. Lingamaiah vs State Of A.P. And Ors. on 9 January, 2004

authorities and ultimately the matter went before the Land Grabbing Court, where the contesting parties filed affidavits and counter-affidavits and also led evidence in support of their respective claims. In the present case, it is contented by the respondent-revenue authorities, that the petitioner had not even replied to the show-cause notice and straight away approached this Court filing this writ petition by raising disputed questions with respect to his title and, in fact, had taken inconsistent pleas with regard to the extent of land in his possession and the length of his possession. 54. The contention of the petitioner that inasmuch as he is in possession of the land, the Government could not have allotted the same to HUDA, and the allotment made by the Government to HUDA is bad and illegal, is devoid of any merit. It is the case of the Government that the petitioner was already dispossessed from the land. When once the petitioner was dispossessed from the Government land, by following the procedure prescribed by law, the land absolutely vested in the Government, and it was always open to the Government to make use of the said land according to its requirements. In that view of the matter, the allotment made to HUDA by the Government under a valid panchanama, for housing purposes, cannot be said to be bad or illegal. 55. Apart from all the above, as on today, except an extent of Ac.1-20 guntas of land, in respect of which there is order of status quo, the rest of the land was already sold in auction by developing the same into plots by HUDA, and it is the case of HUDA that upon auctioning the plots they had even put some of the purchasers of the plots in possession and because of the orders of status quo granted by the Civil Court, they arc unable to take further action in the matter. 56. In the above view of the matter, the writ petition is devoid of any merit, and the same is accordingly dismissed. No costs.

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