Commissioner of Survey, ... vs G. Padmavathi and Others on 18 June, 1999

Andhra High CourtAndhra High CourtCommissioner Of Survey, ... vs G. Padmavathi And Others on 18 June, 1999Equivalent citations: 1999 (4) ALD 61, 1999 (4) ALT 209Author: N HanumanthappaBench: N Hanumanthappa, V B RaoORDER

N.Y. Hanumanthappa, J.

1. This appeal is directed against the judgment and order of the learned single Judge of this Court in WPNo.16232 of 1992, dated 30-10-1998. The appellants herein are the respondents and the respondents hereinare the petitioners in the writ petition.

2. The rank of the parties is described herein as in the writ petition.

3. A few facts which are necessary to dispose of this appeal are as follows :

One G. Narayaiia Swamy was the owner of Ac.S.OO of land in S.No. 129/10 of Shaikpet village forming partof Banjara Hills of Hyderabad, who had purchased the same under a registered sale-deed dated 21-1-1966.The said Narayana Swamy was the husband of G. Padmavathi, Ihe 1st petitioner herein. Petitioners 2 and 4are his sons and petitioners 3 and 5 are his daughters. After purchasing the said land, G. Naryana Swamy putup a compound wall around the whole extent of Ac.8.00. He also put up small tentaments and a watchman'squarter in the said land. It contains Municipal number bearing 8-2-269/8/1. After the death ofNarayanaswamy, the said land was devolved upon all the petitioners herein.

4. During his life time, late Narayana Swamy entered into an agreement of sale in respect of the said land infavour of a Cooperative House Building Society. He had also applied to the Government seeking exemptionunder Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the "UrbanLand Ceiling Act". To get exemption he had to get the land mutated in his name. Accordingly he made anapplication to the authorit ies concerned. On his request, the Government in i ts proceedingsNo.D.Dis.No.D/5021/80, dated 10-10-1980 directed the District Collector, Hyderabad and other subordinateauthorities to mutate the name of Narayana Swamy in respect of the said land in the revenue records so that itmay enable Narayana Swamy to get exemption. The Tahsildar, Golconda, held an enquiry and passed an orderon 29-10-1980 effecting mutation of the said land in the name of G. Narayana Swamy. While mutating, theTahsildar found that S.No.l29/!0 was merged and became part of newly formed S.No.403. Accordinglymutation was effected in the revenue records as having formed part of new S.No.403 of Shaikpet village. Theeffect of mutation was communicated to the Collector and also to the Government. However exemptionsought under Section 20 was still under consideration. In the year 1981, the Government undertook surveyunder the Town Survey Act. New survey numbers were assigned in respect of the lands situated in BanjaraHills and other areas. According to the petitioners, no notice was given to them or their predecessor-in-titleregarding conducting of town survey. On 15-4-1983, in the case of No.B./1605/9183, the RDO withoutissuing notice to the petitioners cancelled the mutation ordered by the Tahsildar. The order of the RDO waschallenged by the petitioners in WP No.3322 of 1983. On merits the said writ petition was allowed quashingthe order of the RDO and directing the authorities to hold fresh enquiry after giving notices to the petitioners.Pursuant to the said order, the RDO again passed an order dated 19-3-1987 cancelling the mutation order andattempted to demolish the building and even started giving instructions to the revenue authorities to build uprecords. Aggrieved by the said order, the petitioners filed WP No.3954 of 1987. This Court by its order dated27-9-1988 allowed the said writ petition quashing the order of the RDO dated 19-3-1987 and directed theCollector, Hyderabad to dispose of the petitioners' appeal keeping in mind the observation made by the Court.This Court in its order further observed that all the proceedings that were initiated under the provisions of theLand Encroachment Act were set at naught. It was also observed that the petitioners are in possession of the

Commissioner Of Survey, ... vs G. Padmavathi And Others on 18 June, 1999

Indian Kanoon - http://indiankanoon.org/doc/120454/ 1

said land. The Court restrained the authorities not to interfere with the petitioners' possession. The petitionerswere also allowed to take action against the respondents therein for damages for having dismantled thecompound wall put up by their predecessor late Narayana Swamy, On 16-4-1990, this Court in WP No.257 of1990 passed an order allowing the petitioners to reconstruct the compound wall and put up other structures.Thus, the orders of this Court in three writ petitions referred to above had become final. Pursuant to the ordersof this Court referred to above, the District Collector, Hyderabad held an enquiry and passed an order dated11-1-1991 holding the property in question bearing No.8-2-269/8/1 measuring Ac.8.00 on Road No.2. BanjaraHills was part of old S.No.129/10, but later on merged with the larger part of land in the new S.No. 403.According to him, the mutation effected by the Tahsildar was correct and it was originally assigned by theerstwhile Sarfekhas authorities either to G. Narayana Swanty or to his vendors. The said order of the Collectordated 11-1-1991 was confirmed on 25-5-1991. Pursuant to the order of the Collector dated 11-1-1991mutation was effected (restored) in the revenue records. To the surprise of the petitioners nearly after the lapseof 11 to 12 years, the subsequent District Collector appears to have sent a false report on 18-9-1992 findingfault with his predecessor's order dated 25-5-1991 and also doubting the correctness of the mutation orderedby the Tahsildar dated 29-10-1980. On the strength of the said report of the Collector, the 1st respondentnamely Commissioner of Survey and Settlements and Land Records in his proceedings dated 19-10-1992 inCCS and LRRef.No.P5/ 2038/92 suspended the Collector's orders dated 25-5-1991 and proposed to hold freshenquiry in order to set aside the final order of the Collector dated 25-5-1991. The further case of thepetitioners as averred in the writ petition is that the earlier order of the Collector dated 25-5-1991 is inconformity with the orders of this Court in WP "No.3954 of 1987, dated 27-9-1988. As such it is not proper toreopen the said order by way of reviewing or revising. When the matter as to the petitioners' right to enjoy theproperty in question and their entitlement to seek exemption, and the interest of the Government, if any, hadalready been decided, it is not proper for the respondents to re-open the issue by initiating review proceedings.It is further averred that (i) the Collector having passed an order in a quasi-judicial manner that too afterholding an enquiry with reference to the official records, again it is not justified in reviewing the same in theabsence of conferring such power on the said authority; (ii) order of suspension and initiation of theproceedings does not suggest under what authority of law such an action is contemplated; (iii) when the doubtentertained by the Collector was, in fact, confirmed by his predecessor and passed an order dated 25-5-5991,there is no necessity to initiate fresh proceedings by an order dated 18-9-1992; (iv) according to thepetitioners, S.No.129/10 of Shaikpet village was also assigned to Gulam Mohd. Qureshi from whom oneNizamvddm purchased the said property, (v) again from Nizamudditi late G. Narayana Swamy purchased thesaid property; (vi) S.No. 129/10 was also merged in the largest S.No. 403; (vii) in the Khasara Pahani of theyears 1954-55, it was shown that Gulam Mohd. Qureshi, the original owner was in possession of the propertyin question; (viii) the entries in the Khasara Pahani contains the name of Gulam Mohd Qureshi as the personin possession of Ac.8.00 of land in S.No.403 having entered in Seshala Pahani for the years 1955-58; (ix)these entries in the Records of Rights show the name of either G. Narayana Swamy or his vendor and furthersuggest that they have been in possession for more than thirty years as owners with valid title. Alternativelythe petitioners claimed that they have perfected their title by adverse possession over the property in question.According to the petitioners, when S.No.129/10 measuring Ac. 10.00 of land was patta land as early as1333-F (1921 AD). Now it is not proper to say that subsequently the Government has become the owner ofthe property. Initiation of fresh enquiry and suspension of the earlier order of mutation is quite illegal andwithout jurisdiction. If for any reason, the authorities found that the property in question belonged to theGovernment, the proper course for the authorities would have been to approach the Civil Court and not byresorting to review their earlier orders that too after a long lapse of time. Thus contending, they sought that theproceedings initiated in CCS & LR's Ref.No.P5/2038/92, dated 19-10-1992 and all other subsequentproceedings be quashed as illegal.

5. On service of notices, the respondents put their appearance and filed common counter sworn to by MSuryanarayatia, the then Spl. Deputy Collector, Land Protection, working in the office of the 2nd respondent,on behalf of the 2nd respondent and also on behalf of respondents 1 and 3. It is contended in the counter thatthe property in question namely S.No.129/10 is a non-existing one. Shaikpet village was earlier known asSarfekhas village. After merger, all the records pertaining to Shaikpet village were made over to the



Government. S.No.129 was measuring to an extent of Ac.3288.02 guntas which was shown as theGovernment land and called "Kancha Tatti Khana". According to the respondents that in 1331-Fasali (1921AD), Supplementary Sethwar was issued creating S.Nos.129/1 to 129/10. S.No.129/1 was measuringAc.3094.39 gts and S.No.129/2 to 129/10 together were measuring Ac.193.03 gts. In 1334-35 Fasali (1924-25AD), S.No.352 of Shaikpet village measuring Ac.63.24 gts of land was deleted and included inYellareddyguda. Between 1337-Fasali and 1341-Fasli assignments were made by Awal Talukdar. AfterS.No.129/1, new numbers namely S.Nos.129/11 to 129/84 and 129/86 and 129/87 were created. In 1346-Fasli,a supplimentary Sethwar was issued deleting S.Nos.129/1 to 129/10. S.No.I29/l was renumbered as S.No.403and 404. The other numbers namely S.No.129/2 to 129/10 were deleted and new numbers namely S.Nos.353to 402 were created. According to the respondents, between 1964 to 1974 town survey was conducted. UnderSection 13 of the A.P. Surveys and Boundaries Act, notification was published in the Gazette and any personif aggrieved by the entries should have filed a civil suit within three years. The Government in its memo dated28-2-1981 requested the Collector to enquire into the claim of 35 assignments purported to have been madeby the Sarfekhas authorities during 1340-Fasali since different persons claimed Government lands. Noticeswere issued to the alleged assignees on 24-5-1981,2-6-1981,26-8-1981 and 27-8-1981. But notices could notbe served on them as their correct addresses were not available. Hence notices were published in EenaduTelugu Daily on 3-9-1981 and Deccan Chronicle on 2-9-1981 and also in A.P. Gazette dated 9-5-1981inviting objections. As some doubt arose as to the genuineness of the signatures on the State records they werereferred to the Government Examiner of Questioned Documents who in turn in his letter No.AH/200/82, dated29-5-1982 informed that the signatures of Sarfekhas authorities shown in the files obtained from StateArchives are forged and bogus. The Government in its letter dated 28-2-1991 directed the Collector to hold anenquiry into the claim of various persons in respect of S.No.129/10 and other survey numbers. Accordingly,an enquiry was held and the claim of Gulam Mohd Qweshi was taken up. Notices on Gulam Mohd. Qweshicould not be served as his correct -address was not available. Later G. Narayana Swamy who purchased theland in question from Nizatnuddin who in turn had purchased from Gitlam Mohd. Qureshi, claimed that theland in S.No.129/10 measuring an extent of Ac.8.00 was assigned to the original assignee by Private Estate ofH.E.H. The Nizam on 11-11-1958. But such an assignment is incorrect as no such land bearing S.No. 129/10was existing. This was supported by a letter written by Mahatamim Bazarath Private Estate of H.E.H. TheNizam addressed to Nizamuddin. When S.No.129/10 was not in existence, any mutation made by Tahsildar,Golconda, was under a mistaken notion. Hence its cancellation by the Collector was correct. The respondentssought to rely upon the observations made by this Court in WPNo.3322 of 1983, dated 18-2-1987 which isextracted herein:

"I do not find any obvious justification for the petitioners failure to appear before the second respondent andoffer appropriate explanations to the notice issued before final orders were passed on 15-4-1983. In view ofthe petitioners failure to appear before respondent No.2, they had been set ex parle and respondent No.2 hadpassed the orders setting aside the mutation effected by the Tahsildar. The various points urged in this writpetition involving a detailed enquiry should have been urged by the petitioners before respondent No.2without allowing the matter to be disposed ofexparte.

From the facts urged in the writ petition and also on a perusal of the final order dated 15-4-1983 byrespondent No.2, the main question that falls for consideration is the identification of the property. While thepetitioner claims the survey number of the property as 403 as having been allotted after a re-survey, the pleataken by the 2nd respondent is that there was no such survey number given and the property of the petitionersbears the S.No.129/10. Inasmuch as the identify of the property, which is the subject matter of consideration,has to be established with reference to the factual data, it is not possible for this Court to go into the matterand it will be more appropriate for the 2nd respondent to consider all the facts and come to an appropriateconclusion.

Having regard to the facts and circumstances, I think it proper to set aside the impugned order dated15-4-1983 of respondent No.2 and to direct the petitioners to file within two weeks from today a detailedexplanation in respect of the proceedings initiated for cancelling the mutation. The second respondent shall go



into the explanations offered by the petitioners and after giving the petitioners an opportunity of being heard,pass appropriate orders. If the petitioners failed to file before the 2nd respondent herein a detailed explanationto the notice issued within two weeks from today as above directed, it will be open to the 2nd respondent topass such order as he may consider expedient in the facts and circumstances of the case."

6. After satisfying that the earlier proceedings of the Tahsildar were incorrect and there was no existence ofS.No.129/10, the Tahsildar, Golconda Mandal initiated proceedings under A.P. Land Encroachment Act,1905. The petitioners were evicted. Then the petitioners filed WP No.3954 of 1987 wherein an ex partsinterim order was passed by this Court on 31-3-1987 to the effect that the petitioners shall not bedispossessed. It is their case that the order of the District Revenue Officer, Hyderabad dated 11-1-1991 iserroneous one. He passed the said order on the ground that the Government had ordered for mutation of theland. The orders passed by the District Revenue Officer are inconsistent with the other orders. TheCommissioner of Survey and Settlements and Land Records is justified in initiating the proceedings in CCS &LR's Ref. P5/2G38/ 92, dated 19-10-1992 and suspending the order of the District Revenue Officer dated25-5-1991, pending further enquiry. Pursuant to the said initiation of proceedings, a notice was issued on6-11-1992 calling upon the petitioners to appear before the Commissioner on 21-11-1992 and to representtheir case. But the petitioners without submitting any representation and appearing before the authorities haveapproached this Court.

7. The further case of the respondents is that the schedule property was never in existence. The alleged vendorof Narayana Swamy namely NizamuJdin had no right or title over the land. The letter that was given byNarayana Swamy to the Government seeking mutation was forwarded to the Tahsildar. But the Tahsildar,Golconda misunderstood the communication sent by the Government to him as an order in his favour and hepassed an order for mutation. This was cancelled by the Revenue Divisional Officer in his proceedings dated19-4-1983. When the aulhorities came to know of the irregularity in mutating the name of Narayana Swamyinitiated proceedings to correct it. In such initiation no illegality has been crept in. According to therespondents, while holding Town Survey, no notice was required to be served on the petitioners as they wereencroachers. The documents if any referred to by the petitioners are forged and to that effect the GovernmentExaminer of Questioned Documents gave his report. There was no illegality in cancelling the order dated19-3-1984 passed by the RDO. He has not disobeyed the order of any of his superiors or the orders of thisCourt. The orders passed in WA No.751 of 1990 by this Court are not helpful to the writ petitioners. Noticeswere issued to the petitioners calling upon them lo appear before the 1 st respondent in the proposed enquiry.The respondents have doubted the correctness of the assignments made by H.E.H. The Nizam Private Estateand 35 Sarfekhas. They also referred to a criminal case filed against one Raghunath in PRC No.9/71. Theentries made against S.No.403 admeasuring Ac.2927.17 gts,, a Government Poramboke land, in KhasaraPahani including the entry made against Gulam Mohd. Qiireshi, is nothing but a handwork of the then Pawariwho was suspended and later dismissed from service. Mere entry in the revenue records cannot convey anytitle over the property. S.No.129/10 creating 1331-Fasali was a patta land of Moulvi Mohd. Moinuddin and itsextent was Ac.27.04 gts. This survey number has nothing to do with the alleged S.No.129/10 assigned toGulam Mohd. Qwesin in the year 1340Fasali admeasuring Ac. 10.00. The claim of the petitioners and otherSarfekhas is a bogus one. The respondents are empowered and competent under the provisions of A.P. (TA)Land Revenue Act to review the earlier orders of the authorities. The State has initiated proceedings againstthe petitioner i.e., Smt. Padmavaihamma, W/o Late G. Naryana Swamy under the provisions of A.P. LandEncroachment Act and also a land grabbing case against the petitioners before the Special Court for LandGrabbing in LGC No. 100/98 under the provisions of A.P. Land Grabbing (Prohibition) Act, 1982. Therespondents lastly contended the disputed questions of facts are involved in the writ petition. As such Article226 is not the proper forum. Thus contending they sought the writ petition be dismissed.

8. The arguments advanced by both sides were almost on the stand taken by the petitioners and therespondents in their affidavit and the counter-affidavit respectively. The main grounds urged by the petitionersbefore the learned single Judge were that the initiation of the proceedings by the 1st respondent against thepetitioners is illegal and without jurisdiction; that when the proceedings were concluded in the year 1980, it is



not proper to initiate the same after lapse of several years that too in the absence of statutory power conferredto initiate such proceeding; that the entries made in the revenue records and Khasara Pahani disclosed the titleof the petitioners over the property in question. The authorities entered the names of the original vendors andthe petitioners in the Revenue Records and Khasara Pahani for the years 1955 and 1958 as the persons inpossession of the land in question as owners. It was contended by the petitioners' Counsel that the entriesmade in the Revenue Records shall be looked into properly. If any person has set up a claim against a propertyand the question of title is involved, the party who has set up such a claim shall approach the Civil Court fornecessary relief.

9. The petitioners Counsel further canvased before the learned single Judge that the authority who has passedan order of review or revision whether on administrative or quasi-judicial side must have the powers andauthority to pass such orders. In support of this proposition the learned Counsel for the petitioners placedreliance on the decisions of this Court in Venkanna v. State of A.P., and Y.

Bheemappa and others v. The Commissioner of Land Revenue, A.P. and others, 1983 (1) ALT 77 (NRC).Secondly that such review or revisional powers must be exercised within the stipulated period. If no time isfixed, within the reasonable period. To support this contention they relied on the decision rendered in the caseof State ofGujarat v. P. Raghav Natha, , wherein the Supreme Court held that the power of review must beexercised within the specified period. According to the learned Counsel for the petitioners that when a party'stitle to the property is disputed or doubted, the proper course is to approach the civil Court as held by theSupreme Court in Government of AP. v. T. Krishna Rao, . In support of his other contentions, the learnedCounsel for the petitioners placed reliance on the decisions in Sivaprasad v. Narasimhamurthi, AIR 1940Mad. 187 and State of A. P. v. Thimmappa, 1963 (2) An.WR(NRC)42.

10. On behalf of the State, it was argued that (i) the writ petition is not maintainable as it consists of disputedquestion of facts as to title; (ii) S.No.129/10 was never in existence; (iii) earlier order of Tahsildar effectingmutation in favour of the petitioners was erroneous. Hence its correctness was required; (iv) the vendor of G.Narayana Swanty had no title over the land. As such any alienation or transfer in favour of the petitioners isnot valid; (v) the Revenue Records showing the names of petitioners or late G. Narayana Swamy are notgenuine as opined by the Government Examiner of Questioned Documents and (vi) in respect of the land inquestion already the State has initiated proceedings against the petitioners both under the Land EncroachmentAct and A.P. Land Grabbing (Prohibition) Act 1982, as such the request of the petitioners does not required tobe considered.

11. The learned single Judge after considering the entire material on record and giving a careful thought to thecontentions raised by both sides, found that the contentions raised by the petitioners are correct andaccordingly it resulted in allowing the writ petition granting the relief sought for by the petitioners. Aggrievedby the same this writ appeal by the State.

12. In this appeal, the learned Advocate General tried to attack the order of the learned single Judge urging thefollowing grounds : (i) the writ petition is not maintainable against a notice calling upon the parties to appearbefore the 1st respondent; (ii) the learned single Judge instead of interfering and quashing the proceedings inquestion should have asked the petitioners to appear before the 1st respondent who initiated enquiry underA.P. (Telangana Area) Land Revenue Act; (iii) The Land Grabbing Court in LGC No.57/89 held thatS.No.403 is a Government Land the same is binding on the petitioners. S.No.129/10 was never a part ofS.No.403. The documents if any relied upon by the petitioners are all bogus. The District Revenue Officer isnot right in setting aside the earlier order of the RDO. In order to correct the same subsequently proceedingswere initiated. When the Government found that the claim of Narayana Swamy and several others was bogus,it was for the authorities to take proper action against the concerned after holding regular enquiry. When thequestion of assignment by Sarfekhas was the subject matter of batch of Writ Appeals in WA Nos.859/91,872/91 and 1118/96 which relate to the assignment of land in S.No.129 in sub-division, the learned singleJudge should have waited till the disposal of the writ appeals. Under Section 166 of A.P. (Telangana Area)



Land Revenue Act, the respondent No.l has got powers to review the earlier order, or revise the orders of hissubordinates svo motu or on the application made. The learned single Judge erred in not observing thatmutation does not confer any title. Entries if any in the Revenue Records were maintained for fiscal purpose.The entries made in A.P. Town Survey and Boundaries Act were not challenged by the petitioners withinthree years. The learned single Judge erred in not noticing that in earlier proceedings it has observed that thepetitioners have no valid right or title over the land in question. Hence the authorities were not prevented toproceed with further enquiry. The learned Advocate General lastly contended that when the proceedings inrespect of same land are pending before the Land Grabbing Court, the learned single Judge should havedismissed the writ petition. Thus contending, the learned Advocate-General requested the appeal be allowedand order of the learned single Judge be set aside.

13. The learned senior Counsel Sri K. Pratap Reddy appearing for the petitioners urged grounds which werecanvased before the learned single Judge particularly laying stress on two points-firstly, the disputed propertyis a private property of the petitioners; the entries made in the revenue records show the names of either thepetitioners or their predecessors-in-title. Thus, they are entitled to be in possession of the land as owners.Alternatively they are entitled to continue in possession of the property as they have perfected their title byadverse possession. Secondly, though the authorities were aware of the mutation that was earlier ordered bythe Tahsildar and then confirmed by other authorities and including the direction given by this Court inseveral writ petitions, yet they resorted to unsettle the things which were settled long ago, which act of therespondents is quite arbitrary and without an authority of law. In support of his contentions, the learnedCounsel placed reliance on some of the authorities which he cited before the learned single Judge which wereconsidered by the learned single Judge and passed the order in favour of the petitioners.

14. The main controversy is as to the existence of S.No.129/10 of Shaikpet village which becamesubsequently part of new S.No.403. From the material produced, the entries made in the revenue recordsdisclose the name of late G. Narayana Swamy, husband of the 1st petitioner and father of other petitioners,and his vendor. The said entries relate back to several decades. The entries in the Record of Rights andKhasara Pahani and other records were also looked into by the learned single Judge. The State disputed thegenuiness of the said documents. In support of its contention as to the non-genuineness of the recordsmaintained by the revenue authorities and the entries made in favour of the petitioners, the State relied onsome of the documents and also the report said to have been sent by the Examiner of Questioned Documents.No attempts were made to summon the documents from the State Archives Department, The State's case isthat the entries in the revenue records will not confer any right, but they are maintained for fiscal purposenamely to know whether tax has been paid or if not who has to pay the tax etc. It is the further case of theState that mutation made by the Tahsildar was under a mistaken impression. According to the State (i) theproperty in question never belonged to the petitioners, but throughout it was the property of the State; (ii)satisfying with the mistake committed by its subordinate officials, the Government thought it fit to revise thesame and, accordingly, the mutation that was ordered earlier was cancelled and proceedings were initiated toenquire into the correctness of the claim made by the petitioners; (iii) the proceedings initiated though late butnot illegal as they were initiated by exercising the powers conferred under Sections !66 and 166-B of A.P.(Telangana Area) Land Revenue Act (No.VIII of 1317 F).

15. Both sides contended that entries in the Record of Rights support their case. How far reliance can beplaced on the entries made in the revenue records, we have got several authorities both for and against. Insupport of the contention that entries in Records of Rights do not suggest title, but they are maintained forfiscal purpose, the learned Advocate-General placed reliance on the decision of the Privy Council rendered inNirman Sitigh v. Lal Rudra Pratab, AIR 1926 PC 100; wherein it was held as follows :

"It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which thetitle to and the proprietary rights in immovable property are determined. They are nothing of the kind, as hasbeen pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscalinquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for



the occupation of certain denominations of immovable property may be put into occupation of it with greaterconfidence that the revenue for it will be paid."

16. On the other hand the learned Counsel for the petitioners placed reliance on the following decisions for theproposition that the entries made in the revenue records will have a presumptive value, Rajeswar Rao v.Narsing Rao, AIR 1952 Hyd. 75; Narayana Deo v. Ramamurthy, , Anantham Veeraju V. Venkayya,

, Viswa Vijaya v. Fakrul Hussain, .

17. In Rajeswara Rao v. Narsinga Rao case (supra), the High Court of Hyderabad held as follows:

"In this High Court the Pahani Patrik entries have always been looked upon with considerable reliance in viewof the fact that these entries are made in discharge of official duties to keep up the Revenue record of thecultivators. If the defendants or any one of them or somebody on their behalf cultivated these lands, it was notdifficult for them to produce entries if any, to discharge the onus which was not on them initially but at leastfor the purposes of rebuttal. As regards revenue receipts if there were any in possession of the defendants, ifthe defendants had took entries, they might have produced them. The absence of this kind of evidence for therebuttal of the plaintiff evidence can only lead to one conclusion that in this village the 'Pahanipathrak' entriesthat exist are the only ones produced by the plaintiff and that the only receipts that were given from theRevenue Department are those produced by the plaintiff."

In Narayana Deo v, Rama Murthy, (supra) the Madras High Court held as follows :

"Where the survey officer after demarcating the boundary of a survey number gave notice to the registeredholders of the survey number intimating to them his decision and when the registered holders found thatwithin their survey number has been included more land than what they were legitimately entitled to theynaturally did not complain but the aggrieved party Puthukudi illom whose land had been included wrongly inthe survey number had not been given any notice there has been no proper application of Section 13 andhence the Survey Officers decision will not be binding upon the Puthukudi IIIom under whom the plaintiffsclaimed."

In Anantham Veeraju v. Venkayya, (supra), this Court while dealing with the presumption of entries inrevenue records held as follows:

"In the absence of other cogent and unimpeachable evidence to the contrary, the person in whose name theproperties stood in survey and settlement registers should be taken to be the real owner thereof.

The mere fact that tax was paid on one occasion by one individual in respect of lands standing in the name ofsomebody else does not denote that he is either the pattedar or is in enjoyment of the land. It might be that hepaid it on behalf of the person in possession thereof."

In Viswa Vijaya v. Fakritl ffussain (supra), the Supreme Court held as follows :

"It is true that the entries in the revenue record ought, generally to be accepted at their face value and Courtsshould not embark upon an appellate inquiry into their correctness. But the presumption of correctness canapply to genuine, not forged or fraudulent entries. The distinction is that one cannot challenge the correctnessof what the entry in the revenue record states but the entry is open to the attack that it was made, fraudulentlyor surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim topossessory title."

18. Petitioners tried to support their case pleading that, alternatively, they perfected their title by adversepossession. It is settled proposition that to prove adverse possession one need base his claim entirely on the



documents said to be genuine. But if documents disclose the continuation of possession for a statutory periodit can be declared that the person in possession has perfected his title by adverse possession. For thisproposition we have the following authorities, namely : "Narayana Sweaty Devaroyar v. ThangaveluPadayachi, AIR 1924 Mad. 800, Ganshamdoss Narayanadoss v. Saraswathi Vai, AIR 1925 Mad. 861,Srichandra Nandy v. Baijnaih Jugal, AIR 1935 PC 36, Ambika Prasad v. Ram Ekbal Rai, AIR 1966 SC 605and Government ofA.P. v. T. Krishna Rao,

In Ganshamdoss Narayana Doss v. Saraswathi Bai case (supra), the Madras High Court held as follows :

"Where a person has been put in possession of a property for over 12 years as legatee with an absolute estateunder a Will by a testator who had no disposing power over the property and no objection has been made bythe persons entitled to the property, the person in possession acquires an absolute title to the property."

19. In the case of Srichatidra Nandy v. Baijnath Jugal case (supra), Ihe Privy Council held as follows :

"The possession required must be adequate in continuity, in publicity and in extent to show that it ispossession adverse to the competitor. The classical requirement is that the possession should be pec-vi-necdam nee precario. It is not necessary that the adverse possession should be brought to the knowledge of theperson against whom it is claimed. It is sufficient that the possession should be overt and without any attemptat cancelment so that the person against whom time is running ought, if he exercises due vigilance to be awareof what is happening."

20. In the case of Ambika Prasad v. Ram Ekbal Rai case (supra) the Supreme Court held as follows :

"Now, if a thing or a State of things is shown to exist, an inference of its continuity within a reasonablyproximate time both forward and backwards may some times be drawn. The presumption of futurecontinuance is noticed in Illustration (d) to Section 114 of the Indian Evidence Act, 1872. In appropriatecases, an inference of the continuity of a thing or a state of things backwards may be drawn under this Section,though on this point the Section does not give a separate ukkystratuib. The rule than the presumption ofcontinuance may operate restrospectively has been recognised both in India and England."

21. In the case of Government ofA.P. v. T. Krishna Rao case (supra) the Supreme Court held as follows :

"It is not the duration, short or long, of encroachment that is conclusive of the question whether the summaryremedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decisionof that question is more the nature of the properly on which the encroachment is alleged to have beencommitted and the consideration whether the claim of the occupant is bona fide.

Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicateupon by the ordinary Courts of law. The Government cannot decide such questions imilaterally in its ownfavour and evict any person summarily on the basis of such decision. But duration of occupation is relevant inthe sense that a person who is in occupation of a property openly for an appreciable length of time can betaken, prima facie, to have a bonafide claim to the property requiring an impartial adjudication according tothe established procedure of law."

22. From the principles laid down by several Courts in the above decisions, it is clear that a person whosename finds a place in the revenue records will have a right to assert that he is entitled to make a claim asowner unless the same is negatived by rebuttal evidence which the State failed to adduce in the case on hand.It is also settled that a person who asserts that he is the owner of a property shall establish the same byresorting to civil suit which the State has not chosen for the reasons best known to it. In our view thepetitioners are right in their contention that they have a right to seek exemption under Section 20 of the Actand they are also right in their contention that the initiation of proceedings which were challenged in the writ



petition as bad.

23. The petitioners questioned the authority of the respondent No.l in initiating proceedings under challengeon the ground that action to review or revise earlier order is arbitrary, illegal and without an authority of law.Power to review or revise the orders when and to what extent have been prescribed under Sections 166 and166B of the A.P. (Telangana Area) Land Revenue Act, 1317-F, the said Act. The said sections are extractedherein.

Section 166. Review:

"(1) Every Revenue Officer may, either himself or the application of any party when the application isaccompanied by the original order or decision or by an authentic copy of such order or decision against whichthe review is desired, review the order or decision passed by him or his predecessor and make such order as hemay deem fit."

Provided that an application for review shall be made on the following grounds only:

(a) when some new and important matter or evidence has been discovered which the applicant even after duediligence, could not know or adduce till the order or decision was passed; or

(b) when some mistake or omission, by reason of which the applicant has suffered loss, is apparent on the faceof order or decision; or

(c) when there is some other reasonable ground for review.

(2) (a) where it appears to the reviewing authority that there is no reasonable ground for review he shall rejectthe application, but before rejecting the application, the person applying for review shall be given anopportunity to produce arguments in support of the application.

(b) where such authority is of opinion that the application for review should be granted, he shall grant theapplication but before doing so the opposite party shall be given an opportunity of being heard.

(c) where such application is on the ground of the discovery of new and important matter or evidence whichthe applicant alleges was not within his knowledge or could not be produced by him till the order of decisionwas passed, it shall not be granted unless such allegation is fully proved.

(3) Where in the opinion of a Settlement Commissioner or the Collector the review of an order or decision notpassed by him is necessary or when any other Revenue Officer, below the rank of a Collector, SettlementCommissioner desires to review an order or decision whether passed by him or his predecessor every suchOfficer shall before granting the application for review obtain the sanction of such Officer or higherdepartment whose immediate subordinate he may be.

(4) No order or decision shall be modified or annulled on review unless all the parties to the case to beaffected are summoned and heard against the order or decisions under review.

(5) When a memorandum of appeal or application for revision has been fifed against any order or decision,such order or decision shall not be reviewed.

(6) No order or decision shall be reviewed which affects the mutual rights of the raiyot unless an application isfiled by some party to the case and such application for review shall not be admitted unless it is filed within90 days from the date of the order or decision.



(7) When an order or decision has been disposed of in appeal or revision, no Revenue Officer lower in rank tothe authority hearing the appeal or revision shall be competent to review such order or decision.

(8) For purpose of this section, the Collector shall be deemed to be the successor of every such RevenueOfficer in the District as may not be present within the limits of the District or who has ceased to have powersin the Revenue Department: Provided that his successor has not been appointed.

(9) Orders passed in view shall on no account be reviewed.

Section 166-A. Application of Limitation Act:

The provisions of the Indian Limitation Act, 1908 (Central Act 9 of 1908) shall as far as possible, apply toevery memorandum of appeal and application for view under this Act.

Section 166-B. Revision :

(1) Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358-F,the Government or any Revenue Officer not lower in rank to a Collector the Settlement Commissioner ofLand Records may call for the record of a case or proceedings from a subordinate department and inspect it inorder to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and properand may make suitable order in that behalf:

Provided that no order or decision affecting the rights of the ryot shall be modified or annulled unless theconcerned parties are summoned and heard.

(2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the recordsof a case or proceedings from a subordinate department and satisfy himself that the order or decision passed orthe proceedings taken regular, legal and proper and if, in his opinion, any order or decision or, proceedingsshould be modified or annulled, he shall put up the file of the case with his opinion to the Collector orSettlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may passsuitable order under the provisions of sub-section (1)."

24. The above said provisions envisage that as far as review is concerned, the authorities shall exercise theirpowers within 90 days. In case of revision either on application or suo motu to correct the mistake crept inthough time is not mentioned but such an act of revision shall be done within reasonable time.

25. Thus the review is not an appeal. This Court which passed ihe order may seek to correct if any errorapparent on the face of the record or order is found. It is only to correct the injustice caused. Revision is tocorrect any illegality or irregularity. The power of Review or Revision when has to be exercised and thelimitation to the said review or Revision has been explained by this Court and other Courts in the followingdecisions : In the case of State ofGujarat v. Pate! Raghav Natha (supra), the Supreme Court held as follows:

"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. Itis true that there is no period of limitation prescribed under Section 211, but it seems to us plain that thispower must be exercised in reasonable time and the length of the reasonable time must be determined by thefacts of the case and the nature of order which is being revised.

12. It seems to us that Section 65 itself indicates that length of the reasonable time within which theCommissioner must act under Section 211. Under Section 65 of the code if the Collector does not inform theapplicant of his decision on the application within a period of three months the permission applied for shall bedeemed to have been granted. This Section shows that a period of three months is considered ample for theCollector to make up his mind and beyond that the Legislature thinks that the matter is so urgent that



permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that theCommissioner must exercise his revisional powers within a few months of the order of the Collector. This isreasonable time because after the grant of the permission for building purposes the occupant is likely to spendmoney on starting building operations at least within a few months from the date of the permission. In thiscase the Commissioner set aside the order of the Collector on October 12, 1961, i.e., more than a year after theorder, and it seems to us that this order was passed too late.

13. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he didnot give any reason as for his conclusion. We have already extracted the passage above which shows that afterreciting the various contentions he baldly stated his conclusions without disclosing his reasons. In a matter ofthis kind the Commissioner should indicate his reasons, however briefly, so that an aggrieved party may carrythe matter further if so advised.

26. In the case of G. Narasimhamurthy v. Director of Settlements, 1989 (1) ALT 124, this Court whileinterpreting Sections 4(4) and 5 of A.P. Muttas (Abolition and Conversion into Ryotwari) Regulation Act,1969, held as follows :

"Even though no period of limitation is prescribed under the relevant enactment for exercise of power suomotu, the power should be exercised within a reasonable time. It is not open to the authorities to take actionafter a lapse of several years, merely on the ground that there is no period of limitation. What is a reasonabletime depends upon the facts and circumstances of each case.

In this case, it was only on 29-8-1987 that the impugned notice was issued seeking to exercise the revisionalpower under Section 4(4) of the Regulation 12 years after the Director of Settlements had knowledge aboutthe grant of paltas. The period of limitation for filing the appeal is only two months. Therefore, the action ofthe 1 st respondent in seeking to revise the order of (he Settlement Officer dated 2-2-1975 in 1987 isunreasonable."

27. In the case ofKalleii Chengaiah v. Director of Settlement, , this Court while interpreting Section 5(2) ofA.P. (A.A) Estate Abolition Act, 1948, held as follows:

"Section 5(2) makes it clear that the Director has power to cancel or revise any order of the SettlementOfficer, of course, excluding those against which an appeal lies to the Tribunal. The words 'cancel or revise'occurring in the section arc wide enough to take in, the incidental power of remand to the lower authority bythe Director while exercising his powers under Section 5(2) of the Act, irrespective of the fact whether therevision is a preferred one or taken up suo motu.

In this case, at the time of issuing the show-cause notice, the Director was not having even the order ofgranting patta so that he could peruse and find a ground to take up the revision suo motu. This is a case wherethe patta was granted as long back as in the year 1983 and the present revision taken up stio motu is disposedof in October, 1990 upsetting the settled rights conferred through the patta in favour of the petitioner to theland in question. Therefore, on the ground of non-application of mind, before initiation of the proceedings,and the resultant upsetting of the settled rights, the impugned order is liable to be quashed."

28. In the case of Linga Reddi v, Director of Settlements, 1997 (2) ALD 459 - 1997 (1) APU 41 (SN), thisCourt while interpreting the scope of Sections 10 and 64 of A.P. (Andhra Area) Estates Land Act, 1908 heldas follows:

"Andhra Pradesh (Andhra Area) Estates Land Act 1908, Sections 10 and 64 -A.P. (AA) Estates (Abolition andConversion into Ryotwari) Act, 1948-Zamindari Estate abolished and taken over by Government by virtue ofabolition Act XXVI of 1948 - Persons holding lands enjoying transferable and heritable rights under EstatesLand Act (Act I of 1908) - Continue to enjoy the rights of ownership - After abolition of estates -Rough pattas



granted and names entered in 10(1) revenue accounts - Collector requested Director of Settlements to initiatesuo motu proceedings in respect of such lands - The Director of Settlements initiated proceedings on theground that pre-abolition records are not available to hold that the rough pattas granted are valid - Withoutenquiry -Unsustainable - Mere fact that land is not cultivated though capable cultivation - Rough pattasgranted by revenue authorities cannot be reopened after lapse of long time except when there is proof of fraudor misrepresentation while obtaining pattas - Proceedings initiated out of pressure without application ofmind-Invalid."

29. In the case of Ibrahimpatnam Taluk Vyavasaya Coolie Sangam v. K. Suresh Redcfy, 1996 (2) ALD 945(DB), the Division Bench of this Court while interpreting the scope of Section 50-B of A.P. (Telangana Area)Tenancy and Agricultural Lands Act, 1950 held as follows:

"The law is far too well settled that where power is conferred on an authority to exercise suo motu revisionalpower without setting out the time limit within which the power is to be exercised, the jurisdiction is ofnecessity required to be invoked within a reasonable time frame, though such reasonable time may varyaccording to the facts of the case. Non stipulation of the limitation for exercise of the suo motu power doesnot authorise the authorities vested with the power to invoke it after a lapse of any length of time sinceexercise of an administrative power or quasi-judicial power is necessarily linked to the concept of Rule ofLaw enshrined in the Constitution and exercise of such power after a long lapse of time (sprima faciearbitrary. Absence of arbitrariness in exercise of vested power is only reiteration of the principles ofprevalence of Rule of Law. Exercise of such power after 14 to 15 years is ipso facto unreasonable."

30. In the case of Yenkanna v. State of A.P., (supra) and Bheemappa v. Commissioner of Land Revenue,(supra), the Division Bench of this Court, one of us (Sri N.Y.H, J.,) a Member in WP Nos.3039 of 1989 and13648 of 1991, dated 19-4-1997 while considering the above decisions took a view that the powers which theauthorities sought to exercise shall be just and reasonable. Such power shall not be restored to unsettle thethings which were settled long ago. Keeping silent for several decades and then to come up with anexplanation that the lands in question were prohibited for alienation or the order passed by the subordinateofficers is incorrect or the mutation ordered is incorrect or the alienators are not entitled for mutation, is notproper. It was further observed that the powers to revise are quasi-judicial in nature. The same shall beexercised within a reasonable period. While exercising such powers, the authorities shall give valid andacceptable reasons. It was also observed by this Court that the powers exercised shall clearly establish that theauthorities acted uninfluenced by extraneous consideration. In other words, exercising such powers shall befree from arbitrariness.

31. The petitioners canvassed that order cancelling the mutation and initiation of proceedings against thepetitioners are with a mala fide intention. Any order passed either on administrative side or quasi-judicial side,the same shall be free from malice. For this proposition, we have the decisions rendered by the Supreme Courtin the following authorities namely C.S. Rowjee v. State of Andhra Pradesh, , Barium Chemicals Ltd v.Company Law Board and

others, and Menaka Gandhi v. Union of India,

.

32. In C.S. Rowjee v. State of Andhra Pradesh (supra), the Supreme Court held as follows:

"It is true that allegations of mala fides and of improper motives on the part ofthose in power are frequentlymade and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of thisnature which have no foundation in fact, are made in several of the cases which have come up before theSupreme Court and other Courts and it is found that they have been made merely with a view to causeprejudice or in the hope that whether they have basis in fact or not, some of it at least might stick.



Consequently it has become the duty of the Court to scrutinise these allegations with care so as to avoid beingin any manner influenced by them, in cases where they have no foundation in fact In this task which is thuscast on the Courts it would conduce to a more satisfactory disposal and consideration of them, if those againstwhom allegations are made came forward to place before the Court either their denials or their version of thematter, so that the Court may be in a position to judge as to whether the onus that lies upon those who makeallegations of mala fides on the part of authorities have discharged their burden of providing it. In the absenceof such affidavits or of materials placed before the Court by these authorities, the Court is left to judge of theveracity of the allegations merely on tests of probability with nothing more substantial by way of answer."

33. In the case of Menaka Gandhi v. Union of India, (supra), the Supreme Court leld as follows :

"We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu, ,namely, that

'from a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness, aresworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of anabsolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to politicallogic and Constitutional law and is therefore violative of Article 14.' Article 14 strikes fairness and equality oftreatment. The principle of reasonableness, which legally as well as philosophically, is an essential element ofequality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedurecontemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be noprocedure at all and the requirement of Article 21 would not be satisfied."

34. The acts of the authorities in initiating the proceedings against the petitioners herein to revise the earlierorders of mutation, if viewed in the light of the facts narrated above, has to be held as illegal. It was contendedby the respondents that the petitioners have challenged the notice and not an order. But the narration of factsand the circumstances under which the respondents have chosen to take action against the petitioners inrespect of the land in question clearly establish that their initiation of proceedings suggests that the authoritiesare pre-determined and their main idea is to unsettle the things which were settled long ago. Thus, the saidinitiation of proceedings is without an authority of law and abuse of powers. Under such circumstances, thisCourt exercising its powers under Article 226 of the Constitution of India can mould the relief and passappropriate orders to do justice as held by the Supreme Court and this Court in the following authorities,namely Gunwant Kaur v. Bhatinda Municipality, , Century Spinning Mills v. The Ulhasnagar MunicipalCouncil, , Comptroller and Auditor-General of India v. K.S. Jagannatham, , Dronam Raju Satyanarayana v.N.T. Rama Rao, and Ramesh Kumar v. Kesho Ram,

.

35. In the case of Gunwant Kaur v. Bhatinda Municipality, (supra), the Supreme Court held as follows :

"The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because inconsidering the petitioners right to relief questions of fact may fall to be determined. In a petition underArticle 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of jurisdiction, thoughdiscretionary the discretion must be exercised on sound judicial principles. When the petitioner raisescomplex questions of fact which may require oral evidence to be taken and the High Court may decline to trya petition."

36. Similar is the view taken by the Supreme Court in Century Spinning Mills v. The Ulhasnagar MunicipalCouncil, (supra).



37. Thus the Court under Article 226 of the Constitution of India shall not interfere in a disputed question offact is only a rule of discretion and not exclusion of jurisdiction as held by the Supreme Court in S.N. Sharmav. Bipen Kumar, , whenever there is miscarriage of justice, under such circumstances, the Court an interfere asheld in Century Spinning Mill's case (supra), to the effect that the Court is not incompetent to decide an issueof fact which can be determined from the materials on record. However, from the allegations and counterallegations made, in the case we are not called upon to decide disputed questions of facts.

38. In appropriate and specific cases, though prayer is not made, Court can definitely mould and grant therelief, including the consequential relief as held by this Court in Dronam Raju Satyanarayana v. N.T. RamaRao's case (supra), which is extracted herein:

"It is settled law that this Court in applications filed under Article 226 of the Constitution has power to mouldthe relief taking into account the totality of the circumstances and the exigencies of the situation."

39. In the case of Comptroller and Auditor-General of India v. K.S. Jagannathan, (supra), the Supreme Courtheld as follows :

"The High Courts exercising their jurisdiction under Article 226 have the power to issue a writ of mandamusor a writ in the nature of mandamus or to pass orders and give necessary directions where the Government ora public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statuteor a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevantconsiderations or by ignoring tile relevant considerations and materials or in such a manner as to frustrate theobject of conferring such discretion or the policy for implementing which such discretion has been conferred.In all such cases and in any fit and proper case a High Court in the exercise of its jurisdiction under Article226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions tocompel the performance in a proper and lawful manner of the discretion conferred upon the Government or apublic authority and in a proper case, in order to prevent injustice resulting to the concerned parties, the Courtmay itself pass an order or give directions which the Government or the Public Authority should have passedor give had it properly and lawfully exercised its discretion."

40. It is further observed by the Apex Court in the case of Ramesh Kumar v. Kesho Ram, (supra), as follows :

"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as theyobtain at the commencement of the list. But this is subject to an exception. Wherever subsequent events offacts or law which have a material bearing on the entitlement of the parties to relief or on aspects which bearon the moulding of the relief occur, the Court is not precluded from taking a 'cautious cognizance' of thesubsequent changes of fact and law to mould the relief."

41. The land involved in this case is one of the lands assigned by Sarfekhas. During some period, differentextents of lands were assigned to others. The genuineness of the documents relating to the assignments andthe entries made in the revenue records, Khasara Pahani, Holding Register, Cist Receipt, Municipal Receiptand other correspondence between the Secretary to H.E.H. The Nizam and the claim of the assignees over theland assigned were the subject matter in WP No.I963 of 1983 (Ms. Merit Enterprises and others v. State ofA.P. and others). The Division Bench of this Court in its order dated 29-9-1983 took into consideration thefact of binding nature of the orders of the criminal Court, the authority of the Secretary to Sarfekhas to assignthe land in favour of other persons, Gulam Mohammed Qweshi, the vendor of Nizamuddin, subsequenttransfer of the same to the others; calling the respondents therein to appear before the Special Grade DeputyCollector on a particular date to prove their title by producing necessary documents; silence on the part of theauthorities in not taking steps for years together; holding of title in question not only passed on to thepetitioners therein but also the documents relied on by them were genuine. The Division Bench also observedin Merits Enterprises case that even otherwise the petitioners therein perfected their title by adversepossession as at no point of time the petitioners therein were evicted from the land in their occupation either



under the provisions of the Land Encroachment Act or the Land Grabbing Act. The Division Bench furtherobserved that if the authorities were of the opinion that the land in question a Government land and not belongto the assignees, they should have taken steps to file a civil suit to get their title declared. Thus observing theDivision Bench quashed the proceedings ordered under the Land Encroachment Act in the case of MeritEnterprises (WP No.1963 of 1983), dated 29-9-1983. This order was challenged by the State before theHon'ble Supreme Court in Civil Appeal No.267 of 1984. Almost similar contentions raised in these appealswere raised before the Apex Court. The Hon'ble Supreme Court after hearing both sides rejected thecontentions of the State (Appellant herein) and held as follows :

"Learned Counsel for appellant-State raises a fundamental issue contending that it was not the domain of theHigh Court to undertake such a fact finding enquiry in proceeding under Article 226 of the Constitution. It hasfurther been contended that the land in dispute was shown in the revenue records as belonging to Governmentand thus should have predominently been viewed over other Government documents so as to establish the titleof the Government. On the other hand, it has been contended that the High Court is empowered under itsextraordinary jurisdiction under Article 226 of the Constitution to widen of limit the parameters of anycontroversy it is dealing with.

It is asserted that when the High Court chose to examine the entire matter inclusive of the factual side, theState without demur participated in it and it cannot now question the discretion or jurisdiction of the HighCourt when a decision has gone against it. Otherwise also it has been countered that the State has noexplanation to the documents in which the land in dispute was shown to be in private ownership and not inState ownership. Having heard Counsel on both sides on the aspects afore-focused, we find that the HighCourt was perfectly justified in going into the question of ownership as that was jurisdictional question on thebasis of which alone proceedings under Section 7 of the Act would be initiated. The High Court having doneso and the appellant-State having participated in the enquiry, it is futile for it to be contending that the HighCourt travelled beyond its jurisdiction. Otherwise, on merit of the matter regarding ownership, nothing hasbeen suggested to us whereupon we could be presumed to take a view different than the one taken by the HighCourt. We thus find no reason to interfere in the order of the High Court."

42. Like in Merit Enterprises case (supra) in this case also, the petitioners and earlier to them theirpredecessors-in-title after purchasing the land in question were put in possession of the same and have beenenjoying the said land. If the authorities found that the land in question is not a private land but belonging tothe Government they should have resorted to civil proceedings. This Court in several writ petitions filed bythe petitioners, after hearing both sides and considering the records produced, held that the petitioners are theowners of S. No. 129/10 (New S, No.403) to an extent of Ac.8.00. In the Merit Enterprises case the possessionof Gulam Md, Qureshi as to his acquiring the same and his entitlement to be in possession and enjoyment andthe land involved herein and other survey numbers assigned by Sarfekhas authorities had come up forconsideration and the same was considered in favour of Md. Qureshi and 34 others. As mentioned earlier, thepoints raised in this writ petition are similar to the questions raised in the case of Merit Enterprises whichwent in favour of the petitioners therein. Later the same was confirmed by the Supreme Court. As such nowno new point is involved to take a view contrary to the one taken in Merit Enterprises case.

43. The learned Advocate-General while concluding his arguments submitted that, against the petitionersproceedings under the Land Grabbing Act and also under Land Encroachment Act have been initiated. Assuch the proceedings initiated by the I st respondent against the petitioners which are challenged in this writpetition deserve to be held as valid. The said submission of the learned Advocate-General does not require tobe considered as those proceedings and the subject matter herein are altogether different. However, when it isfound that the petitioners arc in possession of the land in question in the capacity of owners and perfectedtheir tide, initiation of proceedings either under the Land Encroachment Act or under the Land Grabbing Actis not warranted because of initiation of proceedings under the said provisions is not sustainable unless it isestablished that the petitioners are in possessioii of the land as encroachers or tliey have unauthorisedlygrabbed the land. But the same is absent in the case of the writ petitioners. Under these circumstances,



initiation of any proceedings against the petitioners under the Land Encroachment Act or Land Grabbing Acthas to be observed as illegal, arbitrary and mala fide. Such initiation of proceedings is only with an intentionto harass the petitioners.

44. Exercising suo motu revision or review powers challenged in the writ petition is unwarranted and the sameis mala fide, unreasonable and illegal. Further when the Court comes to know that some illegality has beencrept in the orders or proceedings initiated by the authorities without jurisdiction, the Court without hesitationshall step in to render justice and avoid multiplicity of the proceedings by exercising its jurisdiction underArticle 226 of the Constitution of India.

