STATE OF ANDHRA PRADESH Vs. P KANTILAL JAIN

JUDGEMENT

(1.) THE Writ Petition is filed by the State of a. P. , represented by Mandal Revenue officer, Marredpally, Secunderabad, for a writ of certiorari calling for records relating to and connected with Order dated 31-12-2004 in L. G. C. No. 40/2001 on the file of Special court under A. P. land Grabbing (Prohibition)Act, 1982 at Hyderabad and to quash the same and pass such other or further orders deemed fit in the circumstances of the case.

(2.) THE brief facts of the case are that the petitioner/applicant filed L. G. C. No. 40/2001 on the file of Special Court under a. P. Land Grabbing (Prohibition) Act. Hyderabad against the respondent alleging that the respondent encroached into government Graveyard in T. S. No. 9, block-A, Ward 119, corresponding to Sy. Nos. 19/p, 20/1p and 22/p of Marredpally sarfekhas village to the extent of 6590 sq. mts. Out of total extent of 17,300 sq. mts. In the said survey number, which is being used by the locai community people of marredpaily viiiage since times immemorial as grave yard. It is further stated that in the revenue Records, the said land is recorded as "kabarasthan Khayam" after the Town survey conducted during the years 1967 to 1976 and a notification also was issued under section 18 of A. P. Survey and Boundaries act in Hyderabad District Gazette No. 60 dated 25-9-1976 finally notifying the survey conducted and in the absence of any suit filed under Section 14 of the said Act, the same became final and the said land is vested with the Government and there is a duty cast upon the State to protect the same from any encroachment. It is further stated that the respondent herein, as stated above, grabbed an extent of 6590 sq. mts. In the land in question and constructed compound wall during the year 1996 and when the revenue officials objected him for constructing the compound wall in the grave yard land, he filed W. P. No. 667/1996 before this Court contending that he is the owner of Acs. 11-12 gts. In Sy. Nos. 20/1, 21 and 22 and obtained interim orders on 23-4-1996. Out of the said land Acs. 5-29 gts. Falls in cantonment area and Acs. 3-23 gts. falls in municipal Corporation of Hyderabad limits and about Acs. 2-00 is covered by encroachments. Accordingly, the petitioner herein/applicant sought declaration that the respondent is a land grabber under the provisions of the A. P. Land Grabbing (Prohibition) Act.

(3.) THE respondent filed counter affidavit before the Special Court inter alia stating that the land in Sy. Nos. 19, 20, 21 and 22 of Marredpally viiiage are patta lands and an extent of Ac. 0-37 guntas in Sy. No. 20/2 is Government land and is being used as graveyard. Further it is stated that the respondent filed W. P. No. 667/1996 before this Court and obtained interim orders on 23-1-1996 and when the Revenue officials attempted to dispossess the respondent from the schedule property, the respondent and other joint owners of the application schedule land and owners of the land of an extent of acs. 11-12 guntas in Sy. Nos. 20/1, 21 and 22 filed the said Writ Petition and out of the said Acs. 11-12 guntas, an extent of acs. 5-29 guntas is located in Cantonment area; Acs. 3-23 guntas is located in the municipal limits of Hyderabad and an extent of Acs. 2-00 was encroached. It is further stated that the respondent is in no way concerned with the land located in Sy. No. 19. It is further specifically stated that the application schedule land is not being used as graveyard. The respondent further stated that the original survey was conducted in marredpally village in 1332 Falsli and a sethwar was issued in 1332 Fasli in respect of the lands located in Sy. Nos. 20, 21 and 22. In the said Sethwar, the extent of land in Sy. Nos. 20, 21 and 22 was recorded as acs. 10-17 guntas, Acs. 1-05 guntas and ac. 0-37 guntas respectively. The land to an extent of Ac. 0-37 guntas located in Sy. No. 20 was encroached as graveyard. A supplementary Sethwar was issued in 1349 Fasli in view of the encroachment in sy. No. 20. The said extent of Ac. 0-37 guntas was identified as located in Sy. No. 20/2. In the original Sethwar issued in 1332 Fasli, no extent of the land located in Sy. Nos. 20, 21 and 22 was recorded either as government land or graveyard. Taking advantage of the encroachment of Ac. 0-37 guntas during the period between 1332 Fasli and 1349 Fasli, the extent of Ac. 0-37 guntas was shown as graveyard in the supplementary Sethwar issued in 1349 Fasli and only an extent of Ac. 0-37 guntas in sy. No. 20/2 was shown as Government land or recorded as graveyard. The land in sy. Nos. 20, 21 and 22 was not shown as government land or graveyard. The land in sy. Nos. 20/1, 21 and 22 is not graveyard. In the Sethwar issued in 1332 Fasli and extent of Acs. 1-37 guntas was shown as Pote kharab land in Sy. No. 20 of Marredpally. The said extent of Acs. 1-37 guntas of Pote kharab land was shown in the supplementary sethwar issued in 1349 Fasli and in respect of Pote Kharab land also the Pattedar is the owner of the said Pote Kharab lands. Further it is stated that no notice was issued to the respondent at the time of Town Survey conducted in respect of the land in sy. Nos. 20/1, 21 and 22 of Marredpally. Under Section 5 of the A. P. Survey and boundaries Act, a notice shall be issued to the Pattedar before commencement of the survey. Further, no notification also was issued. The name of the grandfather of the respondent by name Jawarmal Gaverchand was recorded as registered holder in the pahanies in respect of the land located in sy. Nos. 20/1, 21, and 22 of Marredpally from the date of their purchase. Inasmuch as there was non-compliance of the mandatory provisions under the A. P. Survey and boundaries Act, 1923 the entries in the t. S. L. R. are not binding on the respondent. Further, no survey was conducted in the land in Sy. Nos. 20/1, 21 and 22 of marredpally Surfekhas village in respect of the land fell in Cantonment limits. It is further stated in the counter that the grandfather of the respondent purchased the land from Abdul razack under a registered sale deed dated 26th Bahman, 1334, Fasli and before the issue of Sethwar in 1332 Fasli the land in sy. Nos. 20, 21 and 22 was identified as Mazi sy. Nos. 1, 3 and 2 respectively and the said fact was confirmed by the Deputy Director (Survey and Land Records), Hyderabad in memo No. E2/ts/163/97 dated 25-7-1997. A part of Sy. No. 20/1 is included in T. S. No. 9, block-A and Ward No. 119 and also T. S. No. 2 of Ward No. 130, Block-Entire. A part of sy. No. 22 is included in T. S. No. 9, Block-A and Ward-119 and also in T. S. No. 2 ward-130, Block-Entire. It is also further stated that the grandfather of the respondent jawarmal Gaverchand died intestate in 1961 leaving behind his sons and other legal heirs and the names of the said legal heirs of the deceased Jawarmal Gaverchand were mutated in the pattedars' and possessors' columns in the Revenue records by virtue of the proceedings of the Tahsildar, secunderabad No. A2/3866/81 dated 27-8-1982. The said mutation was confirmed and upheld by the Joint Collector, Hyderabad in his proceedings Ex. B-2/8447/90 dated 7-8-1993 and the said order of mutation became final. The other legal heirs of the deceased Jawarmal Gaverchand are not impleaded as parties to these proceedings and non-joinder of necessary parties is bad and the application is liable to be dismissed on the said ground alone. It is also further stated that the respondent and other legal heirs of Jawarmal Gaverchand have entered into an agreement of sale in respect of the above lands with M/s. Prime Estates, jaagruthi Foundations and others under various registered deeds and they were inducted into possession prior to the institution of the L. G. C. and the said persons are in possession of the property. The petitioner/applicant is aware of the said fact. It is also further stated that the U. L. C. authorities in the order DEO/ulc/sbd/ glrsy. No. 1/522/86/92 dated 11-9-1995 declared the respondent and other co-owners as non-surplus holders. The Defence Estate officer passed the said order after a detailed enquiry with regard to the title and possession of the respondent and other co-owners. The Defence Estate Officer passed orders that the respondent and the other co-owners are in possession of the application schedule property. The application schedule property is not graveyard as alleged by the applicant. Further it is stated that an extent of Acs. 2-00 was deducted from the computation as graveyard by the Defence estate Officer, but only Ac. 0-37 guntas is shown as graveyard in Sy. No. 20/2 as per the supplementary Sethwar. Subsequently some property was encroached and the total encroached land is Acs. 2-37 guntas. In order to safeguard the property belonging to the respondent and other co-owners the respondent and the said co-owners constructed a compound wall around the area of Acs. 3-23 guntas located in Sy. Nos. 20/1 and 22 which is in the Municipal limits. The hindu Smasana Vatika development, marredpalli gave a declaration on 27-12-1995 that it has no objection for construction of the said pompound wall which includes the application schedule property. Further, the petitioner/applicant by letter No. B/1603/97 dated 1-3-1999 infor-med the respondent that the said Acs. 3-23 guntas is not covered by graveyard. Further, the petitioner/applicant collected Rs. 63,094/- from the respondent and others towards non-agricultural land assessment tax over an extent of acs. 11-12 guntas located in Sy. Nos. 20/1, 21 and 22 of Marredpally village for the period commencing from 1980 to 1995-96 and it was mentioned therein that the land is used for residential purpose. The respondent and other co-owners also obtained permission from Municipal corporation of Hyderabad for construction of building in an extent of 7550. 65 sq. mts. vide permit No. 116/22/99 dated 20-4-1999 and in pursuance of the said permission the purchasers viz. , Jaagruthi Foundations and others commenced and completed the construction of two blocks on the Eastern side of the property incurring an amount of rs. 6. 31 crores. The applicant did not raise any objection for construction of the building prior to filing of the present L. G. C. The respondent and the other co-owners are the owners of the application schedule property and the petitioner/applicant has no title in the schedule property and hence the respondent is not a land grabber.