STATE OF A.P.versusHYDERABAD POTTERIES PVT. LTD & ANR.

                     (2010] 4 S.C.R. 817


                        STATE OF A.P.                               A
                               V.
        HYDERABAD POTTERIES PVT. LTD & ANR.
             (Civil Appeal No. 3413 of 2010)
                       APRIL 19, 2010
                                                                    B
      [P. SATHASIVAM AND DEEPAK VERMA, JJ.]

    Andhra Pradesh Land Grabbing (Prohibition) Act, 1982:

     ss. 8(1) and (10) - Application by State Government for        c
declaring the respondents as land grabbers - HELD:
Aggrieved person is prima facie required to prove before
Special Court that the land is owned by such person and on
such proof, the presumption u/s 10 will be attracted and the
burden would shift on the respondent to prove that he had not       D
grabbed the land - In the instant case, the Special Court has
rightly recorded a finding that prima facie the appellant-State
has failed to establish that the title of the land vests in it or
that the respondents are land grabbers thereof - Title - Code
of Civil Procedure, 1908 - s. 11 - Constructive res judicata.
                                                                    E
     Title:

    Entries in revenue record - HELD: May not be sufficient
as conclusive proof of title nor can the same be relied on for
proof of establishing the title as such - Andhra Pradesh Land       F
Grabbing (Prohibition) Act, 1982 - ss. 8(1) and 10.

     Code of Civil Procedure, 1908:

      s. 11 - Constructive res judicata - Writ petition before
High Court arising out of ownership dispute regarding land -        G
Municipal Corporation and State Government arrayed as
respondents therein - No plea raised by State that writ
petitioners were land grabbers in respect of the said land -
Later, State Government filing application uls 8(1) in respect
                              817                                   H
    818    SUPREME COURT REPORTS               [2010] 4 S.C.R.


A of the same land claiming' ownership of the said land and·
  seeking declaration that the respondents (writ petitioners in
  earlier writ petition) were land grabbers of its land - HELD:
  The proceedings uls 8(1) initiated by State Government would
  be barred by constructive res judicata - Andhra Pradesh
B Land Grabbing (Prohibition) Act, 1982 - ss. 8(1) and (10).

      The State Government filed an application uls 8(1) of
  the Andhra Pradesh Land Grabbing (Prohibition) Act,
  1982 with a prayer that the respondents be declared as
  land grabbers in respect of 17, 786.5 sq. mtrs. of land. The-
e respondents opposed the application stating that the land
  was purchased by them under a registered sale deed
  dated 31.3.1946 and since then they were in possession
  thereof. The Special Court dismissed the application. The
  High Court in the writ petition filed by the State affirmed
D the order of the Tribunal.

        Dismissing the appeal filed by the State Government,
    the Court

E      HELD: 1.1. Section 10 of the Andhra Pradesh Land
  Grabbing (Prohibition) Act, 1982 makes it clear that an
  aggrieved person is prima facie required to prove before
  the Special Court that the land is owned by such person
  and on such proof, the presumption that the person
F alleged had grabbed the land would be against the latter
  and the burden of proving that the land has not been
  grabbed by him shall be on such person. [Para 7) [822-
  8-C]
       1.2. In the instant case, the sole basis of the
G appellant-State to claim the land was the entries made in
  survey records showing that the scheduled property was
  surveyed and was shown in it as a gap area i.e. un-
  surveyed area as per the old survey records and as such
  it could only be declared to be Government land as has
H been recorded in Column No. 20 of the T.S.L.R. Apart
  STATE OF A.P. v. HYDERABAD POTTERIES PVT.              819
                   LTD & ANR.
 from the said revenue record and issuance of gazette           A
 notification, no other document was filed by the appellant-
 State to show that the said land belonged to it. It is trite
 that entry in the revenue record alone may not be
 sufficient as conclusive proof of title nor can it be relied
 on for proof of establishing the title as such. [para 20]      8
 [826-E-G] ·
       1.3. Looking to the matter in totality ana from all
  angles, it can safely be construed that prima facie the
  appellant-State failed to establish that the respondents
  are land grabbers of the land or the title thereof vested     C
  in the State. Thus, the Special Court committed no error
  in drawing presumption in favour of the respondents that
  they cannot be declared as land grabbers as
  contemplated u/s 10 of the Act and the prim a facie burden
  which lay on the appellant that the land has been             D
  grabbed by the respondents has not at all been
  discharged. On the other hand, the facts would clearly
  establish that respondent No.1 purchased the said land
  from its previous owners whose names had been
  mutated in the land records and after purchase,               E
  respondent No.1 's name came to be mutated in the
  records. Corporation number was allotted to it. It started
  paying Corporation taxes as well as NALA Tax and
  electricity dues. Its possession for last more than 60
  years had never been disturbed. It had constructed multi-     F
  storeyed building on the said land only after obtaining
  sanction and permission from Municipal Corporation.
  Thus, the burden which lay on the respondents as
. contemplated u/s 10 of the Act has fully been discharged.
  [para 24-25] [827-F-G; 828-A-D]                               G
      2. In the earlier writ petition which was filed by the
 respondents in the High Court, and in which the
 Municipal Corporation and appellant-State both were
 parties, the ground of land grabbing was not raised. That
 writ petition resulted in favour of the respondents. Thus,     H
    820      SUPREME COURT REPORTS               (2010] 4 S.C.R.

A   it could not be established even in earlier litigation that
    the land belonged to the State. In fact, the instant
    proceedings initiated by the appellant u/s 8 of the Act,
    would be barred by constructive res judicata as
    envisaged u/s 11 of the Code of Civil Procedure, 1908,
s   even though such a ground was neither taken nor raised
    before this Court by the respondents. [para 25-26] [828-
    D-F]
      3. In the considered opinion of the Court, no fault can.
  be found either in the judgment and decree of the Special
C Court or in the judgment and order passed by Division
  Bench of the High Court, in appellant's writ petition. [para
  27] [828-G]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 3413 of 2010.
         From the Judgment & Order dated 11.10.2007 of the High
    Court of Jutlicature, Andhra Pradesh at Hyderabad in Writ
    Petition No. 4432 of 2005.
E        I. Venkata Narayana, C.K. Sucharita and T.V. George for
    the Appellant.
         Vinod A. Bobde, A.K. Narsimha Rao, Rajendra Kumar, K.
    Ram Kumar, 8. Sridhar for (K. Ramkumar & Associates) for
    the Respondents.
F
          The Judgment of the Court was delivered by
        DEEPAK VERMA, J. 1. Leave granted. Arguments heard.
    Record perused.
G      2. On account of illegal and unauthorized grabbing of Urban
  and Urbanized land in various metropolitan cities, State of
  Andhra Pradesh in. its wisdom thought it fit and appropriate to
  bring an Act to curb this menace. The Act is known as Andhra
  Pradesh Land Grabbing (Prohibition) Act, 1982 (hereinafter
H shall be referred to as the 'Act'].
  STATE OF A.P. v. HYDERABAD POTTERIES PVT.                   821
        LTD & ANR. [DEEPAK VERMA, J.]
     3. Statement of Objects and Reasons discloses that it had        A
come to the notice of Government that there are organised
attempts on the part of certain lawless persons operating
individually and in groups to grab either by force, or by deceit
or otherwise lands belonging to the Government, a local
authority, a religious or charitable institution or endowment,        B
including wakf or any other private person. The Government
was further of the view that such land grabbers are forming
bogus co-operative housing societies or setting up fictitious
claims and are indulging in large scale and unprecedented and
fraudulent sales of land through unscrupulous real estate             c
dealers or otherwise in favour of certain section of people,
resulting in large scale accumulation of unaccounted wealth. It
was felt that public order is likely to be adversely affected. Such
unlawful activities of land grabbers had to be arrested and
curbed by enacting a special law in that regard.                      D

     4. Keeping the aforesaid objects and reasons, initially,
Andhra Pradesh Land Grabbing (Prohibition) Ordinance, 1982;
was promulgated by the Governor on 29.6.1982 as at thattime
State Legislature was not in session. But subsequently, the
aforesaid Act ca.me to be passed by the State Legislature.            E

    5. Section 8 of the said Act deals with procedure, and
powers of the Special Courts which are to be constituted as
required under Section 7 of the Act. A Special Court generally
consists of a Chairman and four other members to be                   F
appointed by the Government.

     6. Section 10 of the Act which deals with burden of proof,
which is required to be considered primarily by us in this appeal,
is reproduced hereinbelow:-
                                                                      G
     "Where in any proceedings under this Act, a land is alleged
     to have been grabbed, and such land is prima facie
     proved to be the land owned by the Government or by a
     private person the Special Court or as the case may be
     the Special Tribunal shall presume that the person who is        H
    822        SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A         alleged to have grabbed the land is a land grabber and
          the burden of proving that the land has not been grabbed
          by him shall be on such person".

       7. Plain and simple reading of the aforesaid provision
  would make it abundantly clear that an aggrieved person as
8
  contemplated under Section 10 of the Act is prima facie
  required to prove before the Special Court that the land is
  owned by such person and presumption that such person had
  grabbed the land would be against him and burden of proving
  that the land has not been grabbed by him shall be on such
C person. In the light of aforesaid provisions existing in the Act,
  we are called upon to examine the correctness, legality and
  propriety of the judgment and order passed by Division Bench
  of the High Court of Judicature, Andhra Pradesh at Hyderabad
  passed in W.P. No. 4432 of 2005 on 11.10.2007, titled State
D of Andhra Pradesh vs. Hyderabad Potteries Pvt. Ltd. and
    Another.

          Factual matrix of the case lies as under:-

E       8. State of A.P had filed an application under Section 8(1)
  of the Act before the Special Court, against the Respondents
  seeking a declaration that they be declared land grabbers in
  respect of schedule property and consequently to evict them
  and deliver vacant possession and to further award
  compensation to the State. The property in question is
F admeasuring 17, 786.56 square meters of land in T.S. 4/2,
  Block-8, Ward No. 66 of Bakaram Village, Musheerabad
  Mandal, Hyderabad District, now said to be in the heart of the
  city. The case of the Appellant before the Special Court was
  that in the town survey conducted in respect of Bakaram and
G Gaganmahal villages in the years 1355 and 1357 faslis
  equivalent to 1945-1947 respectively and further in the year
  1965 and 1971 and on verification of the maps of both villages,
  it was found that certain extent of area existing· between these
  two villages was left un-surveyed and was not accounted for.
H
  STATE OF A.P. v. HYDERABAD POTTERIES PVT.                 823
        LTD & ANR. [DEEPAK VERMA, J.]
Consequently, it remained as a gap area. Gap area means un-         A
surveyed land and would be deemed to be Government land.

     9. According to Appellant, town survey was conducted by
following due procedure as contemplated under A.P. Survey
and Boundaries Act, 1923; accordingly a notification was            B
published for fixing up the boundaries. Thereafter, the schedule
property admeasuring 19214 sq. meters of land was recorded
as Government land in Column No. 20 of the Town Survey Land
Register (for short 'T.S.L.R.'). Later on, a gazette notification
dated 17 .07 .1976 was issued in this regard which remained         C
unchallenged by anyone by way of proceedings under Section
14 of A.P. Survey & Boundaries Act, 1923. Thus, the said
survey having attained finality and the lands having been found
in possession of the Respondents, they would be deemed to
be land grabbers.
                                                                    D.
     10. Appellant further contended that sometime in the month
of December 1998, Respondents without having any right, title
or interest on the said land, yet illegally grabbed the schedule
property to the extent mentioned above and started construction
of multi-storeyed complexes thereon. It was further submitted E
that by creating fictitious and fabricated documents and
obtaining permission from the Municipality, which was earlier
rejected but having challenged the same by the Respondents
in the High Court by filing Writ Petition No. 25727 of 2000, the .
same was granted. The Appellant-State, therefore, contended F
that Respondents are the land grabbers; they should be
directed to deliver possession to the Appellant and pay
compensation accordingly.                     ·

     11 . On notices being issued to the Respondents on the
application filed by the Appellant, they filed counter affidavits   G
denying each and every allegation levelled against them. They
contended that first Respondent is a Company duly registered
under the Companies Act as on 27 .04.1946 and later on, the
nomenclature was changed to that of Hyderabad Potteries Pvt.
Ltd. Initially, Shri S. Rajeshwar Rao and M.K. Mudaliar had         H
    824     SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A purchased an extent of Acs. 4-32 guntas of land in Survey Nos.
  118 to 133 of Nampally Village by registered deed of sale
  executed in their favour on 09.04.1944 by previous original
  owner and pattedar Shri Haji Mohd Abdul Azeez. Later on, the
  said two purchasers sold the said land in favour of Respondent
B No. 1, Hyderabad Potteries Pvt. Ltd. by registered deed of sale
  executed on 31.03.1946 showing clear identity of land with
  boundaries.

       12. Out of the said property purchased, certain portions
  were acquired by erstwhile Hyderabad Government in two
C spells for the purpose of construction of houses known as
  "Labour Quarters''. In the land acquisition proceedings, the
  award was passed determining the amount of compensation
  which was carried to civil court for proper determination and
  further appeals to the High Court but the property purchased
D by Respondent No. 1 Company was not acquired. Thereafter,
  Municipality assigned house numbers for the factory and
  adjoining premises as 1-1-365 and 1-1-365/A. Later on, the
  said property was converted for industrial use as per the orders
  of the Government. On coming into force of A.P. Urban Land
E Ceiling Act, 1976, Respondent No. 1 had filed a declaration.
  After due enquiry, an area admeasuring 1427.44 sq. meters
  of the said land of Respondent No. 1 was declared as surplus
  land, which was handed over to Government and possession
  thereof, was also taken by it. Later, under Section 20(1) of the
F Urban Land Ceiling Act, 1976, the State Government on the
  application of the Respondents, granted exemption on
  11.06.1980. However, since the land was not being used for
  purposes for which exemption was sought and granted, the
  Government in its wisdom withdrew the said exemption.
G
         13. Out of the said extent of land, Respondents have
    constructed a multi-storeyed complex on a part thereof, after
    obtaining prior approval and sanction from Municipal
    Corporation Hyderabad and third party rights have been
    created in favour of people, who are occupying the flats, plots
H
  STATE OF A.P. v. HYDERABAD POTIERIES PVT.                   825
        LTD & ANR. [DEEPAK VERMA, J.]
and living with their families. The Municipality had also             A
assessed the constructions for the purpose of tax, which is
being paid regularly apart from payment of electricity and other
charges etc.                 \

      14. For purposes of construction of another multi-storeyed      8
complex, they applied for permission on payment of Rs.
50,00,000/- (Rupees fifty lakhs} towards permission fee and
other charges. The said permission was refused on 26.08.2000
stating therein that the land is a Government land. Respondents
were, therefore, constrained to challenge the same by filing          C
W.P. No. 25727 of 2000 in the High Court of Andhra Pradesh,
which came to be allowed on 25.04.2001 directing the
Municipality to grant permission for construction of such multi-
storeyed complex. In the light of the aforesaid factual scenario,
Respondents contended that the stand of the Appellant-State
is unsustainable and Respondents are in possession of the             D
said land for more than 60 years, in their own rights as owners
thereof, thus, they cannot be declared land grabbers at all.

     15. On the strength of the pleadings of parties, Special
Court was pleased to frame issues, which have been                    E
reproduced in the impugned order.

     16. Her-e, it is pertinent to point out that Section 9 of the
Act, gives powers of the Civil Court and Court of Sessions to
Special Courts constituted under the Act, in so far as, the same
                                                                      F
may not be inconsistent with the provisions of this Act. This
Section further shows that the Special Court shall be deemed
to be a Civil Court and shall have all the powers of a Civil Court.

     17. The parties then went to trial and led evidence.
Appellant examined P.W.1, P.W.2 and P.W.3 on its behalf and           G
proved documents A.1 to A.41. Respondents examined R. W.1
on their behalf and proved documents B.1 to B.33.

    18. On consideration of the entire evidence and the
material on record produced by both sides, the Special Court          H
    826      SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A   by majority view dismissed the application filed by the
    Appellant-State whereas one of its revenue members gave a
    differing judgment upholding the claim of the Appellant only on
    the basis of entries available in T.S.L.R. Due to majority opinion,
    the suit filed by Appellant came to be dismissed. Appellant-
s   State was thus, constrained to file the aforesaid writ petition
    being W.P. No.4432 of 2005, under Article 226 of the
    Constitution of India in the High Court. The Division Bench
    considered the matter from all angles and came to the
    conclusion that Appellant had miserably failed to prove that
c   Respondents are land grabbers as contemplated under the
    provisions of the Act and, therefore, it put its seal of approval
    on the majority view of the Special Court and dismissed the
    Appellant's writ petition.

       19. Feeling aggrieved therefrom, this appeal is preferred
D before us. We have accordingly heard Shri I. Venkatnarayana,
  learned Senior Counsel for the Appellant and Shri V.A. Bobde
  with Shri V. Sekhar, learned Senior Counsel for Respondents,
  at length and perused the record.

E       20. The sole basis of the Appellant to claim the land was
  on the strength of entries made in survey records showing that
  the schedule property was surveyed as T.S. No. 4 12, Ward No.
  66 of Bakaram village having an area of 19214 sq. meters
  showing it as a gap area i.e. un-surveyed area as per the old
F survey records and as such it could only be declared to be
  Government land as has been recorded in Column No. 20 of
  the T.S.L.R. Apart from the said revenue record and issuance
  of gazette notification as mentioned hereinabove, no other
  material document was filed by the Appellant to show that the
G said land belonged only to Government. It is trite that entry in
  the revenue record alone may not be sufficient as conclusive
  proof of title nor can be relied on for proof of establishing the
  title as such.
      21. Special Court had considered the admission of P.W.1,
H one of the witnesses of the Appellant-State, who admitted that
  STATE OF A.P. v. HYDERABAD POTIERIES PVT.                    827
        LTD & ANR. [DEEPAK VERMA, J.]
the schedule land was given Municipal No. 1-1-365 and NALA             A
tax was being collected from Respondent No. 1 and pleaded
total ignorance of the various sale deeds filed by Respondents.
This witness also admitted with regard to acquisition of lands
for construction of labour colonies and passing of the awards.
      22. Considering the evidence of other two witnesses;             B
P.W.2 and P.W.3, Special Court recorded a categorical finding
that they had admitted that at the time of conducting the survey
in the year 1965-1971 and making of entries in T.S.L.R., no
notice was ever served on the Respondents and further
admitted that it appears that all through the possession of the        C
land continued with Respondents only. P.W.2 also admitted
about grant of municipal number to its owner i.e. Respondent
No. 1.
      23. In the light of the same, the majority members of the        D
Special Court came to the conclusion that certain entries in the
T.S.L.R. may not be sufficient proof of possession of the
Appellant-State as owner thereof. Copy of the T.S.L.R. has been
filed showing the details thereof. In Column No. 20 "G" is
mentioned meaning thereby Government, but in Column No. 23             E
which is Remarks Column, the possession of Respondent No.
1, Hyderabad Potteries Pvt. Ltd. is clearly shown which is in
consonance with the stand taken by the Respondents. It is also
pertinent to mention here that 'G' was encircled raising doubts
about it and then in Column No. 23 name of Respondent no.1
is clearly stated.                                                     F

      24. Looking to the matter in totality and from all angles it
can safely be construed that prima facie Appellant-State failed
to establish that Respondents are land grabbers of its land or
the title of the land vested with the State. Thus, the Special Court   G
committed no error in drawing presumption in favour of the
Respondents that they cannot be declared as land grabbers
as contemplated under Section 10 of the Act and the prima
facie burden which lay on the Appellant that its land has been
 grabbed by them has not at all been discharged. On the other          H
    828     SUPREME COURT REPORTS                    [2010] 4 S.C.R.

A hand, on account of various sale deeds, mutation of their names
  in the T.S.L.R., Payment of Taxes and other documents, it was
  fully established that Respondents are the exclusive owner
  therof. Thus, the burden which lay on the Respondents as
  contemplated under Section 1O of the Act has fully been
B discharged.
         25. The narration of the aforesaid facts would clearly
   establish that Respondent No.1 had purchased the said land
  from its previous owners whose names were already mutated
   in the land records and after purchase, Respondent No.1 's
C name came to be mutated in the records. Corporation number
  was allotted to it. It had started paying Corporation Taxes as
  well as NALA Tax and electricity dues. Its possession for last
   more than 60 years had never been disturbed. It had
   constructed multi-storeyed building only after obtaining sanction
D and permission from Municipal Corporation. In the earlier Writ
   Petition filed by them in the High Court, Municipal Corporation
  ·and Appellant-State both were parties, which ultimately resulted
   in favour of the Respondents, no such ground was raised. Thus,
   it could not be established even in earlier litigation that the land
E belonged to the State.
       26. In fact, second proceedings initiated by the Appellant
   under Section 8 of the Act, would be barred by constructive res
  judicata as envisaged under Section 11 of the Code of Civil
   Procedure, even though such a ground was neither taken nor
F raised before us by the Respondents. Thus, it is no more
   necessary to further deal with this issue.
       27. Thus, in our considered opinion, no fault can be found
  either in the judgment and decree of the Special Court or in
G the judgment and order passed by Division Bench of the High
  Court, in Appellant's writ petition.
         28. Keeping the aforesaid facts in mind, we are of the
    opinion that there is no merit or substance in this appeal. It is
    hereby dismissed with no order as to costs.
H
    R.P.                                         Appeal dismissed.