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2023 DIGILAW 722 (TS)

V. v. R. N. Sastry VS State of Andhra Pradesh

2023-10-30

SUREPALLI NANDA

body2023
ORDER : Heard Mr. B. Venkat Rama Rao, learned counsel for the petitioners and learned Government Pleader for Revenue, appearing for respondents. 2. The petitioners have approached the Court, seeking the following relief : “To issue a Writ, or order, or direction more particularly one in the nature of Writ of Mandamus to declare the action of the 1st Respondent in notifying the Petitioners private properties i.e., i) southern portion of plot No.3 admeasuring 357.3 Sq. Yds. owned and possessed by the 1st Petitioner and ii) northern portion of plot No.3 admeasuring 240 Sq.Yds owned and possessed by the 2nd Petitioner totally admeasuring 597.3 Sq. Yds in Plot No.3 bearing H.Nos.6-1-283/1/1 and 6-1-282/1/1 respectively of Padmarao Nagar, Musheerabad Mandal, Hyderabad as “G.Abadi” category of Government Land under Sec.22-A (i) (a) of the Registration Act, 1908 in the Prohibited Properties Register of Hyderabad District pursuant to Government of Andhra Pradesh Circular Memo No.G1/19131/05 Dt.14.09.2007 and issuing a letter Dt. 24.03.2013 through Lr.No.E5/3259/2012 by the Office the 2nd Respondent to the Petitioners intimating such notification of Petitioners Properties in the Prohibitory list as arbitrary, illegal, colourable exercise of power, and in violation of Articles 14, 21 and 300-A of the Constitution of India and consequently direct the 1st to 3rd Respondents to denotify the lands admeasuring 597.3 Sq.Yds bearing H.No. 6-1-283/1/1 and 6-1-282/1/1, of Padmarao Nagar, Musheerabad Mandal, Hyderabad District from the list of Prohibited Properties Register of Hyderabad district notified under Sec.22-A of the Act and direct all the Respondents to de-notify and delete the Petitioners private properties i.e., i) southern portion of plot No.3 admeasuring 357.3 Sq. Yds owned and possessed by the 1st Petitioner and ii) northern portion of plot No.3 admeasuring 240 Sq.Yds owned and possessed by the 2nd Petitioner totally admeasuring 597.3 Sq.Yds in Plot No.3 bearing H.Nos.6-1-283/1/1 and 6-1-282/1/1 respectively of Padmarao Nagar, Musheerabad Mandal, Hyderabad from the list of notified Prohibited Properties under Sec.22-A of the said Act or such other records of T.S.L.R. and Basic Market Value Register maintained by the Respondents, in the interest of justice.” PERUSED THE RECORD : 3. The Counter affidavit filed by the 2nd respondent, in particular, paras 4, 5 and 9 read as under: “4. The Counter affidavit filed by the 2nd respondent, in particular, paras 4, 5 and 9 read as under: “4. In reply to Para 2, it is submitted that the subject land bearing alleged H.No.6-1-283/1/1 and 6-1-282/1/1 has been identified on ground, falls in T.S.No.20, Block-F, Ward 148 of Zamistanpur Village, Musheerabad Mandal, Hyderabad District. As per Town Survey Land Register (TSLR) TS No. 20 to an extent of 479 Sq.Mtrs recorded as "Abadi" in Column No.10 and Col.No.20 is recorded as "GAbadi" and in Col.No.22 it is recorded as "Vacant Land". Thus said land belongs to Government and the State is the absolute owner and title holder of the said land. 5. It is submitted that during the year 1964-69 Town Survey was conducted in Hyderabad District under the provisions of A.P. Survey and Boundaries Act, 1923 duly issuing notification under section 6(1) of the said Act inviting all the concerned to participate in the survey. After completion of the town survey the same was notified in the Gazette as required U/s 13 of Andhra Pradesh Survey & Boundaries Act, 1923 vide Gazette notification No. 36 dt.12.07.1967. The entries in Town Survey Land Records cannot be altered or modified by any means exceptly the Civil Court decree that would be filed within (3) years from the date of notification as per section 14 of the Act. Thus the entries in TSLR became final as no suit was filed questioning the said entries and binding on all. It is submitted that the Government vide G.O.Ms.No.1039, dt: 13-9-1972 have issued instructions stating that the classification of "Abadi lands have to be retained as "Abadi" and in cases where there are builtup area, the name to the occupant have to be recorded as occupant. In the cases of vacant lands of "Abadi" area no private occupancy shall be recognized, except where the occupant is able to prove a valid grant from the Government. In the instant case the entries in Col.No.23 of TSLR i.e., Remarks column wherein the name of one Sri.Vijaya Ramaiah is recorded with details of Case No.24 proves that the predecessor in interest of the present petitioner (father) was aware of town survey proceedings and if he had any grievance against the entries in TSLR he would have been approached the competent Civil Court within the stipulated period as per provisions U/s of A.P.Survey and Boundaries Act. The petitioner did not produce any document to show that said land was granted/allotted by the government. The records clinchingly prove that the State is absolute rightful owner and title holder of the subject land. 9. It is submitted that in order to avoid sale transactions on the government lands and to proceed innocent purchasers to face the legal hurdles, a prohibitory list has been prepared enlisting the government lands as per revenue and Town Survey records and forwarded to the Registration department not to entertain registrations in the said land. Since the land in TS.No.2, Block-F, Ward148 of Zamistanpur Village, Musheerabad Mandal is recorded as G-Abadi vacant land, TS. No was included in the POB. However, the Government vide memo No.36791/Regn/1/A1/2012-1, dt:28.9.2012, issued instructions to the Chief Commissioner of Land Administration to keep the properties list furnished by the District Collector, Hyderabad and by Tahsildars in Ranga Reddy District in abeyance until further orders and directed the District Collector, Hyderabad and Ranga Reddy District to verify the lists and furnish accurate information to Registration officers for making registrations. It is submitted that the list was kept in abeyance only for rectification of errors which took place and the subject land was reverified and be continued to be Government Land even after rectification of list as the land is recorded as Government in Revenue and Survey Records.” 4. The Counter affidavit filed by the 4th respondent, in particular, paras 3 and 5 as it is read as under: “3. In reply to the averments made in Para No. 2 of the Petitioner's Affidavit, it is to state that, the property pertaining to the Affidavit all that is (1) Southern Portion of Plot No.3 admeasuring 357.3 Square yards owned and possessed by the Petitioner No.1 and (2) Northern portion of Plot No.3 admeasuring 240 Square yards owned and possessed by the Petitioner No.2, bearing House Nos.6-1-283/1/1 and 6-1-282/1/1 respectively situated at Padmarao Nagar, Musheerabad Mandal, Hyderabad district. On strength of the Circular Memo.No.G1/19131/05, dated 14-09-2007 of Government of Andhra Pradesh and letter No. E5/3259/2012, dated 24.03.2013 of the District Collector of Hyderabad the Respondent No.2 of the Affidavit, the aforesaid property is prohibited for registration of documents under Section 22-A of Registration Act, 1908 and noted as Abadi Government land and notified in the prohibited property list in this office. This Respondent No.5 of the Affidavit is not competent authority to de-notify and delete the properties from the prohibition list. 5. In reply to the averments made in para no.5 of the Petitioner's Affidavit the Petitioners approached this office to furnish the Market Value of the subject property on 24.07.2012, since the subject property is in prohibited for registration list under Section 22-A of Registration Act, 1908. In view of the fact that the market value of the aforesaid property cannot be issued and the same was intimated to the applicant.” DISCUSSION AND CONCLUSION : DISCUSSION : 5. It is the specific case of the petitioners that the 1st petitioner is the owner and possessor of southern portion of Plot No.3, admeasuring 357.3 square yards and the 2nd petitioner is the owner and possessor of northern portion of Plot No.3, admeasuring 240 square yards, totalling admeasuring 597.3 square yards in Plot No.3 inside the compound of Bunglow No.3 at Walker Town, Padmarao Nagar, Musheerabad, Secunderabad, by virtue of their purchase under two separate registered sale deeds vide document No.1647 of 1965 and 1648 of 1965 dated 23.08.1965 by tracing out the title from one Mrs.V.Bala Tripura Sundari, who in turn is tracing out her title from the original vendors Kaihusroo Hormusji Erani and Nergis Kaikhusroo Erani, represented by their GPA holder Burjor Shiavazshaw Toorkey, under a registered sale deed vide document No.236 of 1956, dated 21.02.1956 and that the Secunderabad Cantonment had collected the property tax from the original owners during the period from 1935 to 1947 in respect of the said subject property. 6. It is further the case of the petitioners that the petitioners obtained permission and approved plan from the Municipal Corporation, Hyderabad for construction of House vide permission No.36/E of 1965, dated 10.12.1965 and permission No.511/E/1965-66, dated 25.02.1966 respectively and had proceeded and made construction of ground floor by obtaining the necessary permissions from the local authorities and the said constructed houses were allotted House Nos.6-1-283/1/1 and 6-1-282/1 respectively and were assessed to property tax by the local authorities and the petitioners had been paying the property tax regularly to their portions of the said houses besides enjoying the electricity and water service connection from the governmental Agencies. It is further the case of the petitioners that the 1st petitioner obtained permission for construction of first floor vide File No.95/61/E of 1981, dated 21.01.1981 and the 2nd petitioner obtained a revised plan for his portion vide File No.838/E of 1968-69, dated 26.08.1968 and made constructions and the revenue authorities also collected Nala Tax from the petitioners during the period 1965 to 2004. On 24.07.2012 the petitioners approached the 5th respondent and made an application to furnish the market value of the subject land with a view to go for development of the subject property and the petitioners were informed that the subject property is registered in the ‘Prohibitory Book of Government Lands, and also in the Basic Market Register maintained by the Registration Department as Government Lands’ basing on the letter dated 04.07.2011 vide Lr.No.C3/5042/2007 issued by the 2nd respondent in pursuance of the Circular instructions vide Government of Andhra Pradesh Memo No.G1/19131/05 dated 14.09.2007, the 2nd petitioner representing the 1st petitioner approached the 2nd respondent and requested to delete the premises bearing H.No.6-1-283/1/1 of Padmarao Nagar of Plot No.3 of Padmarao Nagar, Musheerabad Mandal, owned by the 1st petitioner from the Prohibited list under Section 22-A of the said Act. But the 2nd respondent herein vide his Endorsement No.E5/3259/2012, dated 24.03.2012 rejected the request of the petitioner. Aggrieved by the registration of the petitioners subject properties as Government properties in the classification of properties in the Records of Government, though the subject properties are private properties and the action of the 2nd respondent in refusing to delete the petitioners property from the Prohibited list prepared and notified under Section 22-A of the said Act and for recording the subject private property of the petitioners as “G.Abadi” in Town Survey Land Register (TSLR) and treating it as a Government Property, the petitioners approached the Court by filing the present writ petition. 7. Learned Counsel Mr.B.Venkat Rama Rao, appearing on behalf of the petitioners mainly put’s forth the following contentions: (I) The action of the respondents in notifying the petitioners private property under Section 22-A of the Act, in the Prohibitory list of Government Property is arbitrary, colourable exercise of power and the same is illegal and without jurisdiction. 7. Learned Counsel Mr.B.Venkat Rama Rao, appearing on behalf of the petitioners mainly put’s forth the following contentions: (I) The action of the respondents in notifying the petitioners private property under Section 22-A of the Act, in the Prohibitory list of Government Property is arbitrary, colourable exercise of power and the same is illegal and without jurisdiction. (II) Town Survey Land Register records are not evidence of title and the respondents cannot claim the petitioners subject private property as “G-Abadi” especially in a situation where all other plots in the same row are shown as ‘Abadi’ in TSLR. (III) Respondents notified the petitioners private property in the prohibitory list without issuing notice to the petitioners in the impugned letter dated 24.03.2012 issued by the Joint Collector, Hyderabad District vide No. E5/3259/2012 which is without notice to the petitioners and without any proper application of mind and without any enquiry and therefore, the impugned proceedings of Joint Collector, Hyderabad District needs to be set aside. (IV) The respondent authorities failed to take into consideration the voluminous documentary evidence produced by the petitioners before the authorities concerned in proof of their title particularly tracing out their title from the original owners for the last more than six decades. (V) The respondents cannot claim the petitioners properties as “G.Abadi” Government Land on the basis of TSLR records. The 2nd respondent Joint Collector, Hyderabad District passed the impugned Endorsement dated 24.03.2012 vide No.E5/3259/2012 rejecting the request of the petitioner for deletion of premises bearing No.6-1-283/1/1, Padmarao Nagar of Musheerabad Mandal effected in the list of Prohibited under Section 22-A for doing registration without assigning any reasons vide a cryptic Endorsement without any justification totally ignoring the sale deeds dated 21.02.1956 and 23.08.1965 and other permissions accorded in favour of the petitioners for development of the subject property and the other amenities of power and electricity having been availed by the petitioners in respect of the said subject property and the learned counsel for the petitioners prayed that the writ petition has to be allowed as prayed for. 8. 8. Learned Government Pleader appearing on behalf of respondent No.2 put’s forth mainly the following contentions: (I) The subject land bearing House No.6-1-283/1/1 and 6-1-282/1/1 TS falls in T.S.No.20, Block-F, Ward 148 of Zamistanpur Village, Musheerabad Mandal, Hyderabad District and as per Town Survey Land Register (TSLR) TS No. 20 to an extent of 479 Sq.Mtrs recorded as "Abadi" in Column No.10 and Col.No.20 is recorded as "G-Abadi" and in Col.No.22 it is recorded as "Vacant Land" and the said subject land belongs to Government and the State is the absolute owner and title holder of the said land. (II) The entries in the TSLR became final since no suit has been filed questioning the said entries and in the present case, the Gazette Notification No.36 dated 12.07.1967 had been notified by the Government under Section 13 of the Andhra Pradesh Survey and Boundaries Act, 1923 after completion of the Town Survey. (III) The petitioners having failed to approach the competent civil Court within the stipulated period of three years from the date of Notification as per Section 14 of the Andhra Pradesh Survey and Boundaries Act, 1923 cannot seek a relief now by filing the present writ petition. (IV) The petitioners cannot claim Government Land since transactions of Government Land are null and void and the learned Government Pleader appearing on behalf of the 2nd respondent sought for dismissal of the present writ petition. 9. Learned counsel appearing on behalf of the 4th respondent contends that the subject property is Prohibited for Registration of Documents under Section 22-A of Registration Act, 1908 and noted as “Abadi Government Land” and notified in the Prohibited Property list and respondent No.5 is not a competent authority to de-notify and the delete the properties from the Prohibited list. CONCLUSION: 10. A bare perusal of the material on record clearly indicates sale deed dated 23.08.1965 executed by one V.Bala Tripura Sundari, in favour of the 1st petitioner which is southern portion of Plot No.3, admeasuring 357.3 square yards at Walker Town, Padmarao Nagar, vide document No.1647 of 1965 and the sale deed executed by one V.Bala Tripura Sundari in favour of 2nd petitioner dated 23.08.1965 which is northern portion of Plot No.3 admeasuring 240 square yards at Walker Town, Padmarao Nagar, vide document No.1648 of 1965. A bare perusal of the record also indicates that the petitioners were accorded permission for development of the subject property and provided amenities of power and electricity recognising the title of the petitioners which are filed as material documents in support of the case of the petitioners. The petitioners have filed voluminous material pertaining to the copy of the Assessment Register 1935 to 1947, copy of the Municipal Plans, Property Tax Receipts, Demand Notice and Payment of Nala Property Tax Demand Notice from GHMC, copy of the plan and other documents which clearly indicate the petitioners property as private property since considerable time. 11. The respondents rely upon the entries in the TSLR and contend that the subject land is “G.Abadi” land and claimed that the subject land belongs to Government and the State is the absolute owner and title holder of the subject land. A bare perusal of the impugned Endorsement, dated 24.03.2012 vide No.E5/3259/2012 of the Joint Collector, Hyderabad District rejecting the request of the petitioner for deletion of the subject properties from the Prohibited Property list clearly indicates that the impugned proceedings of the Joint Collector, Hyderabad District vide No.E5/3259/2012 dated 24.03.2012 had been passed mechanically without assigning any reasons, without application of mind and rejected the request of the petitioners for deletion of premises bearing H.No.6-1-283/1/1, Padmarao Nagar of Musheerabad Mandal, holding that as per the TSLR records in column No.10 and column No.20, the subject land is recorded as “G.Abadi”, which is Government Land and as such it cannot be deleted from the ‘POB’ (Prohibited) list. This Court opines that the impugned Endorsement is a cryptic order passed in clear violation of principles of natural justice without petitioners being accorded a reasonable opportunity of hearing and producing the relevant documents evidencing the fact that the subject property is a private property and not “G.Abadi” land as claimed by the Government. This Court opines that mere entry in Town Survey Land Register (TSLR) itself would not be enough to deny title of owners. Entries in TSLR are no doubt relevant but not conclusive. TSLR cannot be regarded as a sole guiding factor and TSLR entries have to be considered in conjunction with other documents. 12. This Court opines that mere entry in Town Survey Land Register (TSLR) itself would not be enough to deny title of owners. Entries in TSLR are no doubt relevant but not conclusive. TSLR cannot be regarded as a sole guiding factor and TSLR entries have to be considered in conjunction with other documents. 12. The Apex Court in the Judgment reported in 2003 (10) SCC, Page 121, in “STATE OF ANDHRA PRADESH v. P.V.HANUMANTHA RAO”, observed as under: The remedy of the writ petition available in the High Court is not against the 'decision' of the subordinate court, tribunal or authority but it is against the 'decision making process'. In the 'decision making process', if the court tribunal or authority deciding the case, has ignored, vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction", the constitutional power of the High Court under Articles 26 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining in justice.” 13. In Hyderabad Potteries Private Limited versus Collector, Hyderabad District and another, the High Court vide its order dated 25.04.2001 passed in W.P.No.25727 of 2000 reported in 2001 (3) ALD page 600, at paras 23 to 26 observed as under: “23. The question as to the nature and scope of entries in TSLR had fallen for consideration in WA Nos.115 and 160 of 2000 before a Division Bench of this Court. The Division Bench observed that "the entries in TSLR are no doubt relevant. But they are not conclusive. It is common knowledge that there may be many instances where the owners of land in urban areas will not be in a position to correlate the house numbers or ward numbers to the survey numbers or the entries may not be upto date and that may introduce some practical difficulties in obtaining TSLR extracts.....The TSLR cannot be regarded as a sole guiding factor." 24. Whether the Municipal Corporation is entitled to reject the application for grant of building permission solely on the ground of an adverse entry made in the TSLR? Justice P. Venkatrama Reddi, (as his Lordship then was) speaking for the Division Bench while adverting to the very question in WA Nos.115 and 160 of 2000 observed: "The controversy does not rest there. Justice P. Venkatrama Reddi, (as his Lordship then was) speaking for the Division Bench while adverting to the very question in WA Nos.115 and 160 of 2000 observed: "The controversy does not rest there. Assuming that the TSLR extract is not available in respect of a particular property or TSLR entries do not go to substantiate the writ petitioners' case, the question then is whether the building permission should be refused automatically. The answer in our View should be in the negative. We have to read the bye-laws in harmony with the relevant section viz., Section 429. What is stressed by Section 429 (aa) is the document proving title to the property. TSLR may be one such document. There are also other documents which are mentioned in the bye-law No.4 (2). (v). The insistence on the production of these documents is only to facilitate the competent authority to satisfy itself that the application has prima facie title and legal authority to erect or re-erect the building. There can be no hard and fast rule as to how to establish the title or lawful authority of the applicant and the basis on which the prima facie satisfaction should be reached by the competent authority. Entries in TSLR are no doubt relevant. But they are not conclusive. It is common knowledge that there may be many instances where the owners of land in urban areas will not be in a position to correlate the house numbers or ward numbers to the survey numbers or the entries may not be upto date and that may introduce some practical difficulties in obtaining TSLR extracts. Therefore, the mere non-production of TSLR extract, if a valid reason could be given for such non-production, does not clinch the issue. The TSLR cannot be regarded as a sole guiding factor to the competent authority while dealing with the building applications. TSLR entries have to be considered in conjunction with other documents which the applicants would like to place reliance upon. The stand taken by the Municipal Corporation that the proof of ownership/possession in the form of TSLR is an essential pre-requisite cannot be upheld though as we have already observed, such document is a relevant piece of evidence. It will have to be considered in combination with other documents which will have bearing on the title and possession of the applicant for building permission. It will have to be considered in combination with other documents which will have bearing on the title and possession of the applicant for building permission. At best, it can be said that insistence on the extracts from TSLR register may be a rule of prudence. But, it cannot be a rule of rigid and mechanical application." 25. It is further held that "the question of title and lawful possession of the applicants cannot be solely decided on the basis of TSLR entries, but also on the basis of any other relevant evidence that may be furnished by the applicants." 26. It is thus clear that an entry in TSLR itself cannot be the conclusive proof of title or lack of it, and the decision either to grant or refuse permission cannot be taken solely on the basis of an entry made in the TSLR. It may be one of the factors that may have to be taken into consideration along with the other material available on record. An entry made in TSLR per se could not create any doubt or cloud on the right, title and interest of a person in respect of any land.” 14. The Apex Court in the Judgment (2010) 5 SCC 382 in “STATE OF ANDHRA PRADESH v. HYDERABAD POTTERIES PVT.LTD. AND ANOTHER”, at para 29 and 34 observed as under: “29. In the light of the same, the majority members of the Special Court came to the conclusion that certain entries in the TSLR may not be sufficient proof of possession of the Appellant-State as owner thereof. Copy of the T.S.L.R. has been filed showing the details thereof. In Column No. 20 ‘G’ is mentioned meaning thereby Government, but in Column No. 23 which is Remarks Column, the possession of Respondent No. 1, Hyderabad Potteries Pvt. Ltd. is clearly shown which is in consonance with the stand taken by the Respondents. It is also pertinent to mention here that `G’ was encircled raising doubts about it and then in Column No. 23 name of Respondent no.1 is clearly stated. 34. Keeping the aforesaid facts in mind we are of the opinion that there is no merit or substance in this Appeal. It is hereby dismissed with no order as to costs.” 15. 34. Keeping the aforesaid facts in mind we are of the opinion that there is no merit or substance in this Appeal. It is hereby dismissed with no order as to costs.” 15. Taking into consideration the aforesaid facts and circumstances, and duly considering the view of the Apex Court in its Judgment reported in 2003 (10) SCC Page 121 in STATE OF ANDHRA PRADESH v. P.V.HANUMANTHA RAO, the Judgment of the Apex Court dated 19.04.2010 reported in 2010 (5) SCC 382 in STATE OF ANDHRA PRADESH v. HYDERABAD POTTERIES PRIVATE LIMITED AND ANOTHER, and the order dated 25.04.2001 passed in W.P.No.25727 of 2000 reported in 2001 (3) ALD Page 600, the Writ Petition is allowed and the impugned Endorsement of the 2nd respondent vide Letter dated 24.03.2012 in Lr.No. E5/3259/2012 is set aside and the 2nd respondent is directed to reconsider the request of the petitioner’s for deletion of southern portion of Plot No.3 admeasuring 357.3 square yards owned and possessed by the 1st Petitioner and northern portion of plot No.3 admeasuring 240 Sq.Yds owned and possessed by the 2nd Petitioner totally admeasuring 597.3 Sq. Yds in Plot No.3 bearing H.Nos.6-1-283/1/1 and 6-1-282/1/1 respectively of Padmarao Nagar, Musheerabad Mandal, Hyderabad which is notified as “G.Abadi” category of Government Land under Sec.22-A (i) (a) of the Registration Act, 1908 in the Prohibited Properties Register of Hyderabad District pursuant to Government of Andhra Pradesh Circular Memo No.G1/19131/05 Dt.14.09.2007, within a period of four (04) weeks from the date of receipt of a copy of this order in conformity with principles of natural justice by providing due notice and reasonable opportunity of hearing to the petitioners and pass appropriate reasoned order duly taking into consideration the view taken by the Courts in the Judgments referred to and extracted above and duly communicate the decision to the petitioners. However, there shall be no order as to costs. Miscellaneous petition, if any pending, shall stand closed.