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Telangana High Court · body

2025 DIGILAW 1014 (TS)

Nagothu Joji v. State of Telengana

2025-09-11

K.LAKSHMAN

body2025
ORDER : 1. Heard Mr. S. Srinivas Reddy, learned Senior Counsel representing Mr. A. Muneendhar Reddy, learned counsel for the petitioner and Mr. L. Ravinder, learned Assistant Government Pleader for Revenue appearing on behalf of respondent Nos. 1 to 6. CASE OF THE PETITIONERS 2. The father of the petitioner, late Nagothu Chinnaiah and his brother, late Papaiah, resided in Nagineniprolu Reddypalem Village, for the period from 1946 to 1958. Prior to 1950, they removed wild growth and rocks in the land to an extent of Acs.05.00 guntas in Survey No.262 (New Survey No.262/1) of Sarapaka Village now in Burgampahad Mandal, Badradri - Kothagudam District and brought the said land into cultivation: i) In the year 1959, they shifted their residence to Sarapaka Village. After demise of his paternal uncle - Mr. Papaiah, who had no issues, his father alone was cultivating the said land. ii) After demise of the father of the petitioner, himself, his three (03) brothers and two sisters viz. Mr.Nagothu Thamasaiah, Mr. Nagothu Innaiah, Mr. Nagothu Balaswamy, Ms. Pudota Showrilu @ Sowaramma and Ms. Kommineni Therisa, had been cultivating the said land with dry crops and had been eking out their livelihood from the income derived therefrom. On account of death of wife of elder brother of the petitioner, his elder brother - Nagothu Thamasaiah went into depression and subsequently left the house and his whereabouts are not known to them. iii) The name of the father of the petitioner was also recorded in revenue records. His father paid Cist in respect of the said land. Even B-Memorandum statements from the years 1964 to 1994 show that his father along with his paternal uncle is in possession of the subject land. iv) During the month of February, 1984, respondent No.4 ignoring the entries in revenue records issued notice under Section-7 of the Land Encroachment Act, 1905, to the father of the petitioner herein calling upon him to show cause as to why he should not be evicted from an extent of Acs.04.00 guntas out of Acs.05.00 guntas. After satisfying with record produced by the father of the petitioner in respect of title as well as possession and the survey conducted, respondent No.4 had issued a Certificate baring No.A/433/1984, dated 19.03.1984. After satisfying with record produced by the father of the petitioner in respect of title as well as possession and the survey conducted, respondent No.4 had issued a Certificate baring No.A/433/1984, dated 19.03.1984. In view of the same, the father of the petitioner and his brother are in possession and enjoyment of the said land from at least 1964 though not 1950. v) In the year 2009, the Assistant Director, Survey and Land Records, Khammam, conducted survey of the said land. As per the said survey, the said land was shown to be located in Survey No.262/2, which is evident from the letter dated 27.11.2014 of respondent No.4. vi) Thereafter, respondent No.2 issued a memo in Rc.No.E3/3134/2014, dated 30.10.2015 informing the father of the petitioner that according to the Regional Deputy Director an extent of Acs.04.07 guntas of land in Survey No.262/1 is Government land and that respondent No.4 had taken possession of the said land. In view of the same, the request made by the father of the petitioner for handing over the said land was rejected. Questioning the same, the father of the petitioner filed a writ petition vide W.P. No.1052 of 2016. During pendency of the said writ petition, the father of the petitioner died on 28.01.2016. The petitioner herein, his brothers and sisters were brought on record as his legal heirs. Thereafter, they withdrew the said writ petition and filed a fresh writ petition vide W.P. No.14066 of 2016, which was also withdrawn later. Again they filed another writ petition vide W.P. No.1662 of 2019 before this Court challenging the memo dated 30.10.2015. This Court allowed the said writ petition on merits vide order dated 30.10.2023 directing the respondents therein to reconsider the case of the petitioner herein for handover the possession of land to an extent of Acs.04.07 guntas (which is hereinafter referred to as ‘subject land’) and pass a reasoned order. vii) Pursuant to the said order dated 30.10.2023, on consideration of material, respondent No.2 has passed impugned order in Rc.No.E3/3134/2014, dated 07.05.2024 rejecting the request made by the petitioner herein for handing over the possession of the subject land. Challenging the same, the petitioner filed the present writ petition contending as follows: a) Respondent No.2 did not consider G.O.Ms.No.971, dated 07.10.1969. Challenging the same, the petitioner filed the present writ petition contending as follows: a) Respondent No.2 did not consider G.O.Ms.No.971, dated 07.10.1969. b) He also misconstrued the judgment of this Court in P. Gangamma v. Vashudha Misra , 1998 (2) ALD 35 stating that this Court quashed the said G.O.Ms.No.971. c) Andhra Pradesh Land Transfer Regulation 1 of 1970 came into force w.e.f. 03.02.1970, whereas this Court quashed the aforesaid G.O. subsequent to enforcement of the said Regulation 1 of 1970. d) This Court and the Hon’ble Supreme Court categorically held that the said Regulation 1 of 1970 is prospective in nature, and transaction/possession prior to 03.02.1970 shall not be affected by the said Regulation 1 of 1970 or subsequent Regulations. Thus, the said judgment has no application to G.O.Ms.No.971. e) Respondent No.2 did not consider the contentions of the petitioner properly, nor gave an opportunity before passing impugned order. With the aforesaid submissions, learned senior counsel sought to set aside the impugned order. CONTENTIONS OF THE RESPONDENTS 3. Whereas, respondent No.2 filed counter affidavit denying the claim of the petitioner contending as follows: i) Respondent No.2 had issued notices dated 14.12.2023 to the petitioners in W.P. No.1662 of 2019 and final notices dated 27.03.2024. Out of six petitioners, only five petitioners responded to the said notices and attended to its office. Personal hearings were also conducted on 29.02.2023 and 03.04.20024. ii) The petitioners filed some documents and material papers. The same were verified and arguments were heard in detail. After verifying revenue records, Sethwar along with report of the Tahsildar, Burgampahad and Survey Report of the Assistant Director, the Regional Deputy Director of Survey Department and other concerned Officers and on verifying the settled law, he came to the conclusion that the petitioners therein are not entitled for handing over the possession of the subject land and accordingly passed the order dated 07.05.2024. Thus, the said order is based on sound reasoning. iii) The petitioner has no right over the subject property as the same is a Government land. iv) The petitioner belongs to Non-Tribe Community and, therefore, he is not eligible for assignment of Government land as the subject land is situated in Scheduled Area. v) The assignment to Non-Tribals in Scheduled Area is prohibited under the Telangana Scheduled Areas Land Transfer Regulation, 1959 as mended by Regulation 1 of 1970. iv) The petitioner belongs to Non-Tribe Community and, therefore, he is not eligible for assignment of Government land as the subject land is situated in Scheduled Area. v) The assignment to Non-Tribals in Scheduled Area is prohibited under the Telangana Scheduled Areas Land Transfer Regulation, 1959 as mended by Regulation 1 of 1970. vi) The subject property was encroached 30 years back by ITC BPL and possession of the same was taken over by the Government in terms of common order in W.P. Nos.20239 of 2012, 6316 of 2010 and C.C. No.859 of 2013. vii) The possession of subject land was taken over by the Government from ITC BPL under cover of panchanama dated 09.10.2015. viii) At present, the petitioner is not in possession of the subject land. Thus, he is not entitled for any benefit under G.O.Ms.No.971. With the aforesaid submissions, learned Assistant Government Pleader sought to dismiss the writ petition. ANALYSIS AND FINDINGS OF THE COURT 4. In view of the aforesaid rival submissions, the main contention of the petitioner is that his father had been in possession and enjoyment of the land i.e., Acs.05.00 guntas in Survey No.262 (new Survey No.262/1) of Sarapaka Village, during his life time. While so, taking advantage of his father’s absence, ITC BPL started parking heavy vehicles over an extent of Acs.04.07 guntas of land out of Acs.05.00 guntas. When the petitioner’s father tried to fence around the said land, respondent Nos.4 and 7 prevented him from doing so. Therefore, he filed a writ petition vide W.P. No.6316 of 2010 and got interim order. During subsistence of the said interim order, respondent Nos.3 and 4 have issued notice dated 22.06.2012 to ITC BPL under Section - 7 of the Act, 1905. Challenging the same, ITC BPL filed a writ petition vide W.P. No.20239 of 2012 against respondent Nos.3 and 4 suppressing the factum of filing of writ petition by the father of the petitioner. Therefore, the father of the petitioner was impleaded in the said writ petition. When the ITC BPL in collusion with respondentNos.4 and 5 removed the fence and started parking heavy vehicles in the subject land, the father of the petitioner was constrained to file a contempt case vide C.C. No.859 of 2013. 5. Therefore, the father of the petitioner was impleaded in the said writ petition. When the ITC BPL in collusion with respondentNos.4 and 5 removed the fence and started parking heavy vehicles in the subject land, the father of the petitioner was constrained to file a contempt case vide C.C. No.859 of 2013. 5. Perusal of record would reveal that both the aforesaid writ petitions and C.C. were disposed of by this Court by way of common order dated 28.10.2014 with the following directions: 1. The District Collector, Khammam (though not a party to this writ petition, a copy of this order is being marked to him for communication and appropriate action) shall take appropriate steps, as directed hereunder and respondents 1 and 2 shall, thereafter, take up further action in accordance with law. 2. The Collector shall direct a superior officer of the Survey and Land Records Department, Telangana, to appoint an officer of the rank of Deputy Director of Survey to conduct survey and demarcate the land alienated to the petitioner company in terms of G.O.Ms.No.1561 Revenue Department dated 26.11.1977. 3. The Deputy Director shall also localize and demarcate the additional land, if any, in possession of the petitioner company. 4. The Deputy Director shall also ascertain and localize as to whether any additional land, if any, is the land belonging to the Government or any private party including the petitioner in WP.No.6316 of 2010 as per the revenue record. 5. The determination and demarcation of the land on the directions above, however, shall not amount to determination of title of any of the parties but shall be only a preliminary ascertainment of the prima facie title of the parties to the additional land, if any. 6. Based on the said report, the Collector shall direct the Revenue Divisional Officer and the Tahsildar to take appropriate action in the matter and to take all necessary steps by duly following the procedure in accordance with law. 7. As and when the survey work is taken up, as per the directions above, all the parties herein shall be duly notified apart from any other person, who will be affected by the survey. The aforesaid exercise shall be completed, preferably, within a period of six (6) months from the date of receipt of a copy of this order by the Collector.” 6. The aforesaid exercise shall be completed, preferably, within a period of six (6) months from the date of receipt of a copy of this order by the Collector.” 6. Pursuant to the aforesaid directions, respondent No.6 - Regional Deputy Director, Survey & Land Records, Hyderabad, conducted survey after issuing notices to the parties concerned and after obtaining connected survey records from the office of the Assistant Director - respondent No.5 on 13.03.2015. Thereafter, respondent No.6 submitted his report to respondent No.5 along with survey location sketch. Perusal of the said survey report of respondent No.6 would disclose that an extent of Acs.04.07 guntas vacant additional land has been localized (shown as ‘A’ in the sketch) and the same is under enjoyment of ITC BPL and is being used as lorry yard by them. Accordingly, respondent No.6 addressed a letter vide Rc.No.A5/34/2015, dated 21.05.2015 to respondent No.2. 7. On receipt of the said letter, dated 21.05.2015, respondent No.2 addressed a letter dated 28.08.2015 to respondent No.3 to take further course of action for eviction of ITC, BPL from encroached land to the extent of Acs.04.07 guntas belonging to Government Land in Survey No.262/1 of Sarapaka Village by giving reasonable opportunity to the parties concerned duly following the procedure in accordance with law and requested him as well as the Tahsildar, Burgampadu Mandal to submit compliance report. 8. On receipt of the said letter, respondent No.3 addressed a letter to respondent No.4 with a direction to take steps for eviction of ITC BPL in respect of the subject land. In pursuance of the said direction, vide letter dated 07.10.2015, respondent No.4 directed the Administrative Officer, ITC, PSPD, Sarapaka, to take over the excess land of Acs.04.07 guntas in Survey No.262/1 from ITC, PSPD, Sarapaka, under cover of panchanama and take necessary steps to safeguard the same. Thereafter, the father of the petitioner herein gave a representation dated 26.10.2015 to respondent No.2 with a request to hand over the subject land. 9. Thereafter, the father of the petitioner herein gave a representation dated 26.10.2015 to respondent No.2 with a request to hand over the subject land. 9. On receipt of the representation dated 26.10.2015 submitted by the father of the petitioner, respondent No.2 issued a memo vide Rc.No.E3/3134/2014, dated 30.10.2015 to the father of the petitioner informing that respondent No.4 had taken possession of the subject land in Survey No.262/1 and that the same belongs to Government and, therefore, it is not possible to hand over the possession of subject land to him and accordingly rejected the request made by the petitioner’s father. On the same day, respondent No.2 also passed the order dated 30.10.2015 to the said effect. 10. While so, the father of the petitioner died on 28.01.2016. Thereafter, the petitioner, his brothers and two sisters filed a writ petition vide W.P. No.1662 of 2019 challenging the said order dated 30.10.2015 and also the memo dated 30.10.2015 of respondent No.2. 11. Vide order, dated 30.10.2023, this Court allowed the said writ petition setting aside the aforesaid order as well as the memo dated 30.10.2015 directing the respondents to reconsider the request made by the petitioner to hand over the possession of the subject land duly considering the entire material on record within a period of three weeks from the date of receipt of copy of the said order and duly communicate the decision to the petitioners. Till completion of such exercise, the respondents were directed to maintain status quo in respect of the land admeasuring Acs.04.07 guntas. 12. Pursuant to the said order, dated 30.10.2023, respondent No.2 had issued notice dated 14.12.2023 to the petitioners in the said writ petition with a direction to appear on 29.12.2023 by 10.30 A.M. with all relevant documents. Respondent No.2 also addressed a letter dated 29.12.2023 to respondent No.4 with a request to submit a detailed report on Survey No.262/1 to an extent of Acs.05.055 guntas. Accordingly, respondent No.4 submitted his report dated 19.02.2024 to respondent No.2. 13. Perusal of the said report would reveal that the father of the petitioner was the resident of Sarapaka Village for the period from 1946 to 14.12.2007 as is evident from the residential certificate dated 14.12.2007. Accordingly, respondent No.4 submitted his report dated 19.02.2024 to respondent No.2. 13. Perusal of the said report would reveal that the father of the petitioner was the resident of Sarapaka Village for the period from 1946 to 14.12.2007 as is evident from the residential certificate dated 14.12.2007. As per the possession certificate dated 19.03.1984 issued by the then Tahsildar, the father of the petitioner was in possession of the land shown in Survey No.262 to an extent of Acs.05.00 guntas from 1964 onwards. As per the survey conducted by respondent No.5, the subject land is in Survey No.262/2, whereas according to the survey conducted by respondent No.6, the same is in Survey No.262/1. 14. Thereafter, respondent No.2 issued a final notice dated 27.03.2024 to the petitioners in W.P.No.1662 of 2019 with a direction to appear on 03.04.2024 at 3.00 P.M. The petitioner herein also submitted an application 06.04.2024 along with relevant documents, such as G.O.Ms.No.971, dated 07.10.1969 etc. 15. After hearing the petitioners in W.P. No.1662 of 2019 and on consideration of the entire material, respondent No.2 passed impugned order dated 07.05.2024 observing thus: i) An extent of Acs.05.00 guntas of land was occupied by Nagothu Family in Survey No.262 as per the entries found in B. Memos which is basically a record of encroachments in Government lands. ii) The land shown by the petitioner is located in Survey No.262/2, but not in Survey No.262/1 as per the report given by the Regional Deputy Director. The extent of land is only Acs.04.07 guntas, but not Acs.05.00 guntas as alleged by the petitioner. iii) On verification of B. Memos, there are certain tampering in the extent under occupation of the petitioner’s family. iv) Thus, the contention of the petitioners that they are in possession of the land in Survey No.262/1 is invalid. v) Regarding possession certificate said to be given by the Tahsildar in the year 1984 is not worthy to take into consideration due to the non-availability of original file. Even as per the Government instructions, no possession certificate shall be given to the Non-Tribals in the Schedule area without the approval from the District Collector on Government Land. v) Regarding possession certificate said to be given by the Tahsildar in the year 1984 is not worthy to take into consideration due to the non-availability of original file. Even as per the Government instructions, no possession certificate shall be given to the Non-Tribals in the Schedule area without the approval from the District Collector on Government Land. vi) As per the instructions given by the Government vide G.O.Ms.No.971, in the cases of Government Lands, a) persons other than landless-poor shall be straight away evicted from the lands occupied by them; b) Landless- poor persons shall not be evicted from the lands under their occupation up to a maximum extent of Acs.2.00 guntas wet, Acs.05.00 guntas of dry which limits shall apply inclusive of the dry lands if any, already owned by the encroachers unless and until such lands are needed for assignment to Tribals and c) no fresh encroachments of Government lands by non-tribals shall be allowed and prompt measures shall be taken to evict any such encroachments. vii) This Court in P. Gangamma has quashed the said G.O. observing that the State cannot issue orders in exercise of its executive power contrary to the Statute. Observing so, respondent No.2 rejected the claim of the petitioner by way of impugned order dated 07.05.2024. 16. In the light of the aforesaid discussion, it is clear that in pursuance of the directions given by this Court in the writ petitions and the contempt case mentioned above and also the direction in W.P. No.1662 of 2019, respondent No.2 passed the impugned order rejecting the claim of the petitioner for handing over the possession of the subject land. The said order was passed by respondent No.2 only after issuing notices to all the parties, hearing them including the petitioner herein, after obtaining necessary reports from respondent Nos.4 to 6 and perusing them in proper perspective. Further, the subject land was encroached 30 years back by ITC BPL and the same was taken over by the Government under a cover of panchanama dated 09.10.2015. 17. In view of the aforesaid discussion, it is not in dispute that the subject land is not relating to any scheduled tribe; that the interest of schedule tribe is not involved in the instant case and that the land is claimed to be the Government land. 17. In view of the aforesaid discussion, it is not in dispute that the subject land is not relating to any scheduled tribe; that the interest of schedule tribe is not involved in the instant case and that the land is claimed to be the Government land. In the light of the same, it can be said that the provisions of A.P. Schedule Areas Land Transfer Regulation 1 of 1959 as amended by Regulation 1 of 1970 have no application to the facts of the present case as held by the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in Marri Siva v. State of Andhra Pradesh , W.P. No. 22806 of 2008 decided on 10.10.2018 following the principle laid down by the composite High Court of Andhra Pradesh at Hyderabad in U. Subhashchandra v. Agent to Government and District Collector, Visakhapatnam , 1992 (1) ALT 52 (NRC). 18. But, in the case on hand, at present, the petitioner, his brothers and sisters are not in possession of the subject land. Had they been in possession of the subject property, their case would have been considered as per the principle laid down in Marri Siva and U. Subhaschandra. Further, they belong to Non-Tribes Community as admitted by the petitioner in the reply affidavit submitted to the counter affidavit of respondent No.2. Therefore, the petitioner, his brothers and sisters are not entitled for handing over of possession as the subject land is situated in Scheduled Area. Even G.O.Ms.No.971 is also not applicable to the case of the petitioner as the same was quashed by this Court in P. Gangamma . Therefore, the contention of the petitioner that he is entitled to get possession of the subject land by virtue of G.O.Ms.No.971 though he is a non-tribe is unsustainable. CONCLUSION 19. As discussed supra, as admitted by the petitioner that he is not in possession of the subject land to an extent of Acs.04.07 guntas out of Acs.05.00 guntas as the possession was already taken by respondent No.4 under cover of panchanama dated 09.10.2015 and the same is under his safe custody. 20. Learned Senior Counsel placed reliance on the decision rendered by this Court in Pingili Pullaiah v. State of Telangana , W.P. No. 39758 of 2022 decided on 24.08.2023 . 20. Learned Senior Counsel placed reliance on the decision rendered by this Court in Pingili Pullaiah v. State of Telangana , W.P. No. 39758 of 2022 decided on 24.08.2023 . It is settled law that transfers of land from tribals to non-tribals in Scheduled Areas are prohibited and void as held by this Court in the said decision. Therefore, the said decision is not helpful to the petitioner herein. Non-tribals cannot hold land in Agency Area. Even if a non-tribal is in possession based on revenue entries, such possession does not confer legal title, especially in Scheduled Areas. The Apex Court and High Courts have consistently held that mere possession or revenue entries do not create ownership, particularly when the land is government or tribal land. If the land is classified as government land, no individual has a legal right to its possession unless granted lawfully (e.g. through assignment, lease, patta). Encroachment on government land does not create any enforceable right. As discussed above, the petitioner is not in possession of the subject land. Therefore, considering his request for handing over the possession does not at all arise. 21. In view of the aforesaid discussion, the order passed by respondent No.2 is on sound reasoning and does not warrant any interference by this Court to set aside the same. Therefore, this writ petition is devoid of merits and same is liable to be dismissed. 22. The present writ petition is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.