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2001 DIGILAW 1519 (AP)

District Collector, Hyderabad v. Thaseen Majeed

2001-11-22

S.B.SINHA, V.V.S.RAO

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S. B. SINHA, J. ( 1 ) WHETHER a roving enquiry as regards the title and possession of a person by the District Collector is permissible in law, is the question involved in this application. ( 2 ) THE parties are referred to by their status in the writ petition. The writ petitions were filed inter alia praying to declare the action of the respondents in issuing summons to the members of the 1st petitioner-association calling upon them to furnish evidence and documents in support of their title as illegal, unlawful and unconstitutional. ( 3 ) THE fact of the matter involving in these matters need to be noticed before adverting to the question involved. The members of the petitioner-association and their predecessors claim that they are in possession of the land in question right from 1912 onwards. Referring to certain entries made in the revenue records, the State claimed the ownership of the land. The Fifth respondent-Mandal Revenue Officer, Saidabad Manda! issued summons to the members of the petitioner-association to appear in person and to produce certain documents in connection with the revenue enquiry in respect of land at Asmanghad, Gaddiannaram. Aggrieved by the said summons, the members of the petitioner-association filed the writ petitions. ( 4 ) THE learned single Judge in the impugned order noticed some proceedings which have bearing over the subject-matter. Further even the Municipal Corporation of Hyderabad having regard to the letter of the Joint Collector dated 30. 6. 1984 granted permission to number of persons for constructions in a portion of the land claimed by the State. The learned Judge arrived at the conclusion that HEH the Nizam was the owner of the land in question. The learned single Judge however, noticed that if the Government has also been claiming title of the land, it cannot be permitted to decide the question of title. It was further held that in the absence of any statutory provision, the District Collector cannot be permitted to issue notice for the purpose of making an enquiry. However, a liberty had been granted to the appellants to initiate proceedings under the A. P. Land Grabbing (Prohibition) Act before Special Court. It was further held that in the absence of any statutory provision, the District Collector cannot be permitted to issue notice for the purpose of making an enquiry. However, a liberty had been granted to the appellants to initiate proceedings under the A. P. Land Grabbing (Prohibition) Act before Special Court. ( 5 ) THE learned Advocate-General appearing on behalf of the appellants would contend that the Collector or for that matter any other authority cannot be said to have been denuded of its jurisdiction to make an enquiry so as to satisfy itself as regards the title of the party in the land in question. The source of power, the learned Advocate-General would contend may not always be traced to the provisions of a statute. The executive power in a situation of this nature, the learned Advocate-General would urge can be exercised by the executive authorities. In any event, he would contend that the disputed questions of title, possession would not have been decided in a writ proceeding. ( 6 ) MR. Subhash Reddy, the learned advocate appearing on behalf of the writ petitioners submitted that the District Collector with a mala fide intention and with a view to harass the writ petitioners had been sending notices directing them to produce the records. According to the learned Counsel, the very fact that under the same title, applications had been made and permissions to raise constructions had been granted by the Municipal Corporation of Hyderabad, would clearly go to show lack of bona fides on the part of the District Collector. ( 7 ) OUR attention in this connection has been drawn to the counter-affidavit filed on behalf of the respondents wherein it has been categorically stated that the appellants herein were contemplating to initiate proceedings before the Special Court. ( 8 ) BEFORE adverting to the question involved in these applications, we may notice the contention of Mr. Subhash Reddy that the State intended to file land grabbing cases before the Special Court as could be gathered from the statements made in the counter-affidavit filed by the District Collector. ( 9 ) THERE cannot be any doubt that the State intends to litigate as regards the title and possession in or over the property in question. The District Collector has two functions, one of which is derived from the statute. ( 9 ) THERE cannot be any doubt that the State intends to litigate as regards the title and possession in or over the property in question. The District Collector has two functions, one of which is derived from the statute. As head of the Revenue Department in the District, he or any other revenue authorities indisputably has the requisite power to initiate appropriate proceedings. The proceedings must however be initiated in accordance with the law and upon following the procedures prescribed in law. The District Collector in exercise of his executive power although may implement the policy decision of the State or take recourse to the developmental programme, he in our opinion is not bestowed with the authority to take recourse to a roving enquiry for the purpose of fishing out the evidences for or against the writ petitioners. ( 10 ) THE executive power vests in a State under the Constitution as envisaged under Article 162 of the Constitution of India. Whenever a proceeding is to be initiated, the same has to be initiated by a suitor having regard to the legal advice that the authority may receive, with regard to merit or otherwise of the case. It for the said purpose, cannot ask the opposite parties to produce the documents before it for the purpose of making enquiry. Such an approach on the part of the suitor is highly objectionable and amounts to arbitrary action. The writ petitioners are claiming their right, title and interest in or over the lands in question by reason of the registered documents. In law, the registration of an instrument itself amounts to notice. The State with a view to satisfy itself as regards the merit or demerit of its case, would be entitled to obtain certified copies of such registered instruments. It may take recourse to such procedures which are available to the other litigants. But in our considered opinion, the State even in the matter of litigation, cannot be held to be in a more advantageous position than a common citizen. The learned single Judge in our opinion has rightly observed that the District Collector had been acting for an unauthorised purpose which amounts to malice in law. But in our considered opinion, the State even in the matter of litigation, cannot be held to be in a more advantageous position than a common citizen. The learned single Judge in our opinion has rightly observed that the District Collector had been acting for an unauthorised purpose which amounts to malice in law. (see Manager, Government Branch Press v. D. Belliappa, AIR 1979 SC 429 .) ( 11 ) THE learned Advocate-General urges that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot also direct the authorities of the State to take recourse to illegalities to exercise the power which it does not possess. ( 12 ) EVEN if the encroachers are to be evicted in a case where there exists bona fide dispute of title, the State should approach the civil Court. In Government of A. P. v. T. Krishna Rao, AIR 1982 SC 1081 , it was held: if there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. ( 13 ) IN Express Newspapers Pvt. Ltd. v. Union of India, (1986) I SCC 132, the apex Court laid great emphasis on bona fide action in ordinary course of official business for implementation of law. It was held that even if the power is exercised with mala fide intention, the same would amount to fraud on power which would vitiate the said action. It was observed that fraud on power voids the order if it is not exercised bona fide for the end design. The State authorities, in our opinion, are entitled to take recourse to such remedies for the purpose of declaration of title before an appropriate forum which is available to them in law. ( 14 ) FOR the view, we have taken in the matter, we are of the opinion that the State can take recourse to initiation of proceedings before the Special Court established under A. P. Land Grabbing (Prohibition) Act, 1982 or before any other forum. ( 14 ) FOR the view, we have taken in the matter, we are of the opinion that the State can take recourse to initiation of proceedings before the Special Court established under A. P. Land Grabbing (Prohibition) Act, 1982 or before any other forum. However, they should not have taken recourse to the action impugned in the writ petition. We therefore find no merit in these appeals. They are accordingly, dismissed. But in the facts and circumstances of the case, there would be no order as to costs.