Telangana High Court
Peerala Pedda Swamy vs The State Of Telangana And 7 Others on 30 September, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P.No.27598 OF 2019
Between:
Peerala Pedda Swamy
... Petitioner
And
State of Telangana & others
... Respondents
JUDGMENT PRONOUNCED ON: 30.09.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
___________________________
MRS JUSTICE SUREPALLI NANDA
2 SN,J
wp_27598_2019
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.27598 OF 2019
% 30.09.2024
Between:
# Peerala Pedda Swamy
... Petitioner
And
$ State of Telangana & others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Sri Kondadi Ajay Kumar
^ Counsel for Respondents : G.P.for Social Welfare for R1
G.P.for Revenue for R2 to R5
Sri K.Raghuveer Reddy for
R6 & R7
Sri Akkam Eshwar, for R9
? Cases Referred:
(1) (2021) 6 SCC 771
(2) (1998) 8 SCC 1)
(3) (2021) SCC Online SC page 801
3 SN,J
wp_27598_2019
THE HON'BLE MRS. JUSTICE SUREPALLI NANDA
W.P. No.27598 OF 2019
ORDER:
Heard Sri Kondadi Ajay Kumar, learned counsel appearing on behalf of the petitioner, learned Government Pleader for Social Welfare appearing on behalf of respondent No.1, learned Government Pleader for Revenue appearing on behalf of respondent Nos.2 to 5, Sri K.Raghuveer Reddy, learned counsel appearing on behalf of respondent No.6 and 7, and Sri Akkam Eshwar, learned counsel appearing on behalf of respondent No.9.
2. The petitioner approached the court seeking prayer as under:
"...to issue a Writ or Order, more particularly one in the nature of Writ of Mandamus, declaring the proceedings bearing No.F4/459/2019, dated 23.08.2019 passed by Respondent No.2 as being arbitrary, vindictive, illegal, ultra virus, violative of Articles 14, 16 and 21 of the Constitution of India and against the principles of natural justice, and consequently set aside the proceedings bearing No.F4/459/2019, dated 23.08.2019 by directing the respondent Nos.1 to 5 to recognize the petitioner as Pattedar, 4 SN,J wp_27598_2019 owner and possessor of the land bearing Sy.No.49 corresponding to its old Sy.No.19/3 of Gangannapet village of Utnoor Mandal of Adilabad District and issue pattedar passbooks in petitioner's favour..."
3. The case of the petitioner as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present writ petition in brief, is as under:
(i) It is the case of the petitioner that, the petitioner's late father had purchased an Agriculture land in Sy.No.49 (new) corresponding to its old Sy.No.19/3 admeasuring Ac.12.5 Gts situated at Gangannapet village of Utnoor Mandal of Adilabad District from the grandfather of Respondent No.6 and father of respondent No.7 through sale deed dated 02-03-1959.
Subsequently on 15.01.1965 registered sale deed vide document No.279/1965 was registered in favour of the petitioner's father. Since then the petitioner's father was in possession and enjoyment of the said land. Subsequent to the death of the petitioner's father, the petitioner had taken the possession of the subject land and had been cultivating the same without any interference.
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(ii) While things thus, in the year 1973 a suo-moto proceeding was initiated by Respondent No.3 vide case No. TWA/843/73, challenging the possession of the subject land, wherein the grandfather of Respondent No.6 had admitted the execution of sale of the subject land. However, the 3rd respondent without considering the said admission passed an illegal order on 17.12.1973 holding that the said transfer was invalid as it is in contravention of Section 3 (1) of the Andhra Pradesh Scheduled Area Land Transfer Regulation 1959 (As amended by Andhra Pradesh Scheduled Area Land Transfer Regulation 1970).
(iii) Subsequently in the year 2018, the Respondent Nos.6 and 7 filed a petition before the Respondent No.3 vide proceeding No. TWB2/143/2018 and based on the enquiry conducted, order dated 18-07-2018 was passed closing the said proceedings advising Respondent Nos. 6 and 7 to approach appellate authority i.e. Additional Agent to Government and Project Officer, ITDA Utnoor. Thereafter, Respondent Nos. 6 and 7 approached Respondent No.2 and filed application vide Proceeding No.F4/459/2019 challenging the order dated 17.12.1973 passed by Respondent No.3. The 2nd respondent had then passed impugned orders on 23.08.2019 6 SN,J wp_27598_2019 upholding the orders passed by Respondent No.3 in case No.TWA/843/73, dated 17.12.1973 without considering the fact that the said orders were lapsed as "not acted upon."
(iv) Moreover, the 2nd respondent had passed the above impugned orders erroneously upholding the orders passed by Special Deputy Collector (TW) in Case No. TWA/843/73, dated 17.12.1973 without verifying its legality and validity and the sale transaction of the subject land took place in the year 1959 and the 2nd respondent has no jurisdiction to deal with the transfers made prior to the commencement of Andhra Pradesh Scheduled Area Land Transfer Regulation 1959 (As amended by Andhra Pradesh Scheduled Area Land Transfer Regulation 1970), even if the transfer of land was by way of sale under an unregistered sale deed. Thus, aggrieved by the orders dated 23.08.2019, the present Writ Petition is filed.
4. PERUSED THE RECORD.
7 SN,J wp_27598_2019
5. The counter affidavit filed on behalf of Respondent Nos.1 to 3, in particular, the relevant portion at para 3, para Nos.8, 10 and 14 are extracted hereunder:
"3. ...On the date of enquiry both parties were present examined Sri Pittala Rajana S/o. Bhomanna R/o. Lakkaram. He deposed that he sold the land situated at Gangannapet sixteen years back and situated an ordinary Sale Deed and a registered Sale Deed. He stated that, he received the entire consideration and he has no dispute with the transferee. Sri Laxmi Swamy deposed that he purchased the land (18) years back from Pittala Rajana Naikpode by caste and got executed an ordinary Sale Deed. He stated that ten years back he got the Sale Deed registered. He admitted that he has not obtained permission to purchase the land. Perused the documents filed by Laxmi Swamy, one of the Sale Deed was extended on O.S. Rs.10/- Stamp Paper on 02.03.1959. The affidavit of sale certified by the Deputy Tahsildar, Utnoor was got executed on 24.04.1964 and Registered Sale Deed was executed on 16.01.1965 vide Doct.No.279.
It is evident from the documents that, the land was purchased for a consideration of Rs.900/- under Indian Registration Act, the transfer of immovable property of Rs.100/- and upward to be made through registered conveyance. The transferee has either obtained permission to purchase from the Competent Officer under the Rules 8 SN,J wp_27598_2019 existing, nor obtained permission the Agent to Govt., the unregistered documents are also not admissible for evidence. The only document that can be considered is the Registered document is got executed by the transferee on 16.01.1965. Thus, it is clear that, transfer is without any valid title on the day of APSALTR 1959 has been extended to Telangana area and the Tribal pattedar continued to be the owner of the land. The transfer of immovable was made through Registered conveyance on 16.01.1965 in Contravention of Sec. 3 (1) of the APSALTR 1959 (as amended APSALTR 1970) and it is admitted fact that, the land is situated in a notified village and sale of immovable property has been taken place from a Tribal to Non Tribal and it is evident from that the evidence that the sale transaction took place after enforcement of the said regulation. Therefore, the said transaction is absolutely null and void and accordingly the powers conferred under Section 3 (2) of the APSALTR 1959 (AS AMENDED APSALTR 1970) Laxmi Swamy S/o. Swamy R/o. Ganganapet who is in possession of S.No:49/1 extent 9.24 situated at Ganganapet ejected from the suit land and possession restored to Pitla Rajana S/o. Bhoomanna R/o. Lakkaram of Utnoor Mandal vide Special Deputy Collector No.TWA/843/73, dtd. 17.12.1973.
According to Judgment Decree and order for restoration of possession of land Laxmi Swamy S/o. Swamy has been ejected and restored possession of land to Sri Chinna Bheemanna S/o Rajanna younger son under cover of Panchanama and Zimma Patrika (Acknowledgment) obtained 9 SN,J wp_27598_2019 from him. The Agent to Govt., and Appellate Authority Collector, Adilabad upheld the action taken by the Special Deputy Collector (TW), Utnoor. Hence, the petitioner requested may not considered.
8. In reply to Para No.7, it is to submit that, the Non Tribal purchaser has been ejected and restored the possession of the suit land to be Tribal Pattedar under cover of panchanama and Zimma Patrika (Ack) the Non Tribal Pattedar is forcibly entered in Suit land. The LRs of pattedar approached the District Collector who is Agent to Govt. and Appellate Authority as they were dispossessed by the Non Tribal Purchaser forcibly and continuing in the possession illegally. The Agent to Govt. passed the orders up holding the orders passed by the Special Deputy Collector order in Case No.TDA/843/73, dated 17.12.1973. Hence, the petitioner request may not considered.
10. In reply to Para 9, it is to submit that, the Special Deputy Collector (TW) has passed the orders examined the documents and enquiry conducted perfectly vide TWA/843/73, dated 17.12.1973 verifying legality and validity since the Non Tribal sale transaction took place after enforcement of APSALTR 1959. Hence, his petition may not considered.
14. In reply to Para No.13, it is to submit that, in the case the Non-Tribal has purchased the Suit land S.No.49/1 corresponding to old S.No.19, extent 9.24 gts situated at 10 SN,J wp_27598_2019 Ganganapet of Utnoor Mandal from Tribal pattedar after enforcement of APSALTR 1959 (as amended APSALTR 1970). The sale transaction took place in 1965 null and void and illegal and against law. Accordingly, the Special Deputy Collector passed orders in Case No.TWA/843/73, dated 17.12.1973 ejecting the Non-Tribal purchaser and restored Suit land possession in S.No.49 corresponding to 19, extent 9.24 gts situated at Ganganapet village of Utnoor Mandal. The Agent to Government/District Collector passed orders in favour of Tribal and orders passed by Special Deputy Collector upheld vide Proc.No.F4/459/2019, dated 23.08.2019 legal and as per law."
6. The counter affidavit filed on behalf of the 6th respondent, in particular, para Nos.3, 5, 6 and 9 are extracted hereunder:
"3. I submit that I am a tribal and resident of Lakkaram Village in Utnoor Mandal of Adilabad District. I am pattedar of land to an extent of Ac.5.16 guntas in Sy No. 49/1 of Gangannapet Village, Utnoor Mandal, Adilabad District. My grandfather, P. Rajanna who was also a tribal, was the owner of the above land. The writ petitioner claims that his father, Peerala Swamy @ Peerala Laxmi Swamy has purchased land to an extent of Ac. 12.05 guntas in Sy No. 49 (New) Sy No. 19/3 (Old) of Gangannapet Village by means of an ordinary sale deed in the year 1959. The writ petitioner also states 11 SN,J wp_27598_2019 that subsequently a Regd. Sale Deed was executed in the year 1965 and after the death of his father in the year 1995, the writ petitioner claims to have come into possession of the entire land. Since the alleged purchase was in violation of the provisions of A.P. Scheduled Areas (Land Transfer) Regulations, proceedings were initiated by the Special Deputy Collector, Tribal Welfare, Adilabad and by Order dated 17.12.1973, the Special Deputy Collector, Tribal Welfare, Adilabad, in exercise of powers conferred under Section 3 (2) of A P Scheduled Areas (Land Transfer) Regulations, has ordered the eviction of said Laxmi Swamy (father of petitioner through whom the petitioner is claiming the land and directed possession of land to be restored in favour of my grand father, P. Rajanna. Said order has become final. Recently when the writ petitioner wanted to interfere with my possession, I have approached the Special Deputy Collector with a representation requesting to give police protection but I was advised to approach the office of District Collector/ Agent to Government (2nd Respondent herein). In those circumstances, I made a representation to the District Collector/ Agent to Government (2nd Respondent herein) on 9.4.2018. The District Collector, after considering the earlier judgment of the Special Deputy Collector, has upheld the order passed by Special Deputy Collector on 17.12.1973, wherein it was held that transactions between a tribal and non tribal are null and void and I am continuing in possession of the property in question.
12 SN,J wp_27598_2019
5. With reference to the averment that upholding the order dated 17.12.1973 of Special Deputy Collector is arbitrary, I submit that the same is incorrect. There is absolutely no illegality in the order passed by 2nd Respondent. In any event, said order was not challenged by the petitioner by way of filing an appeal. I submit that A P Scheduled Areas (Land Transfer) Regulations have come into force w.e.f. 1.12.1963 wherein alienations from a tribal to non tribal were prohibited. Said regulations were amended by Regulation 1 of 1970 which came into effect on 3.12.1970 by means of which even transfer of land from a non tribal to non tribal was prohibited. In the instant case, the Regd. Sale Deed, as claimed by petitioner, was of the year 1965 which was after coming into force of A P Scheduled Areas (Land Transfer) Regulations. The ancestor of this respondent was admittedly a tribal and as such there could not have been any transfer after 1.12.1963. The allegation that petitioner came into possession of the property is totally incorrect. The petitioner was never in possession of the land. On the other hand, pursuant to the order passed by Special Deputy Collector in the year 1973 i.e. on 17.12.1973, this respondent was in possession of the property.
6. With reference to Para No. 5 of the affidavit, I submit that the averment that alleged proceedings initiated against the father of writ petitioner on the subject matter land were closed by 3rd Respondent on 5.8.1991 holding that the said case is not coming under the purview of APSALTR 1959 is 13 SN,J wp_27598_2019 untenable in as much as there was a valid order passed by the competent authority i.e. Special Deputy Collector during the year 1973 and there could not have been any further order passed by the very same authority. Even if it is so, there is no judgment passed in the above case. As stated above, the Special Deputy Collector is not having any power of review conferred by statute; as such, even if there is any such order by the third respondent passed on 5.8.1991, same is an invalid order.
9. It is pertinent to mention here that against any order passed by District Collector/Agent to Government, a Revision lies to the Government under Section 6 of A.P. Scheduled Areas (Land Transfer) Regulations, which states that "the State Government may revise any Decree or Order passed by the Agent, Agency Divisional Officer or any other prescribed Officer under these Regulations - Provided that this power shall be exercised only after due notices to the parties affected by the Decree or Order and after giving them a reasonable opportunity of being heard". In view of the said alternative remedy, the above writ petition is not maintainable. There are absolutely no merits in the above Writ Petition and the same is liable to be dismissed by this Hon'ble Court. This Respondent is continuing in possession of the property and if any interim orders are granted, this Respondent will suffer irreparable loss and injury."
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7. Learned counsel appearing on behalf of the petitioner placed reliance on the following judgments:
(1) Judgment dated 18.09.1995 in The Dy. Collector & Another Vs. S.Venkata Ramanaiah & another, dated 18.09.1995.
(2) Judgment dated 05.01.2006 in Kalagara Vighneswararao Vs. Government of A.P. and Others. (3) Judgment dated 27.09.1999 in Kola Mahalaxmi Vs. Agent to Government, Khammam and Others. (4) Judgment dated 28.08.2000 in K.Mahalaxmi and another Vs. Government of Andhra Pradesh and others. (5) Judgment dated 13.01.2015 in Jt.Collector Ranga Reddy Dist. & Vs. D.Narsing Rao and others Etc. (6) Judgment dated 21.08.1981 in Gaddam Narsa Reddy and others Vs. Collector, Adilabad District and Others. DISCUSSION AND CONCLUSION:
8. A bare perusal of the record indicates that vide impugned proceedings bearing No.F4/459/2019 dated 23.08.2019 of the 2nd respondent herein, the eviction orders passed by the then Special Deputy Collector (TW), Utnoor vide Case No.TWA/843/73 dated 17.12.1973 had been 15 SN,J wp_27598_2019 upheld. A bare perusal of the proceedings dated 17.12.1973 of the Special Deputy Collector (Tribal Welfare), Adilabad indicates that the land transaction from Tribal to Non-tribal was held as null and void as per LTR 1959 giving cogent reasons. A bare perusal of the said proceedings dated 17.12.1973 further indicates that the transferee (Non- Tribal) i.e., One Shri Laxman Swamy S/o. Swamy, was directed to be ejected from the subject suit land i.e., land to an extent of 9.24 in Sy.No.49/1 situated at Gangannapet and possession restored to the Tribal/Pattedar i.e., on Shri Pittala Rajanna. It is also borne on record that the petitioner who is the son of Shri Laxman Swamy, had not challenged the said proceedings dated 17.12.1973 by preferring an appeal before the appropriate forum as mandated under the rules till as on date, and the said order has become final.
9. Section 6 of the Andhra Pradesh Scheduled Areas (Land Transfer Regulations), reads as under:
"6. Revision:- The State Government may revise any decree or order passed by the Agent, the Agency Divisional Officer or any other prescribed officer under this Regulations;
16 SN,J wp_27598_2019 Provided that this power shall be exercised only after due notice to the parties affected by the decree or order and after giving them a reasonable opportunity of being heard."
10. A bare perusal of the above referred provision clearly indicates that against any order passed by the District Collector/Agent to Government, a revision lies to the Government under Section 6 of the Andhra Pradesh Scheduled Areas (Land Transfer Regulations). The petitioner however approached this Court by filing the present writ petition.
11. The Division Bench of the Apex Court in a judgment dated 20.04.2021 reported in (2021) 6 SCC 771 in M/s. Radhakrishnan Industries Vs. State of Himachal Pradesh, referred to Whirlpool Corporation Vs. Registrar of Trade Marks (reported in (1998) 8 SCC 1) and further the said view had been reiterated by a Full Bench of the Apex Court (3 Judges) in a judgment reported in (2021) SCC Online SC page 801 in Magadh Sugar and Energy Limited Vs. State of Bihar and Others dated 24.09.2021 and in the said judgment it is observed at para 28 as under:
17 SN,J wp_27598_2019 "28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion;
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
18 SN,J wp_27598_2019 This Court opines that the present case falls under Clause (ii), Clause (v) and first limb of clause (vi) of para 28 of the Apex Court judgment extracted above.
12. This Court opines that the Judgments relied upon by the learned counsel appearing on behalf of the petitioner do not apply to the facts of the present case.
13. Taking into consideration:
(i) The aforesaid facts and circumstances of the case,
(ii) The submissions put forth by all the learned counsel on record,
(iii) The averments made in the counter affidavit filed on behalf of Respondent Nos.1 to 3 and Respondent No.6 (referred to and extricated above),
(iv) The fact as borne on record that the proceedings dated 17.12.1973 passed by the then Special Deputy Collector (TW), Utnoor vide Case No.TWA/843/73 dated 17.12.1973 had not been challenged by the 19 SN,J wp_27598_2019 petitioner, before appropriate forum, till as on date and hence the said order has become final,
(v) The fact as borne on record that the petitioner failed to avail the statutory remedy of revision to the Government as provided under Section 6 of the A.P. Scheduled Areas (Land Transfer Regulations) against the impugned proceedings bearing No.F4/459/2019 dated 23.08.2019 passed by respondent No.2,
(vi) The view of the Apex Court at Clause (ii), Clause
(v) and first limb of clause (vi) of para 28 of the Apex Court judgment referred to and extracted above, The Writ Petition is dismissed giving liberty to the petitioner to avail the remedy as is available to the petitioner as per the statute against the impugned proceedings dated 23.08.2019 vide Proc.No.F4/459/2019 of the District Collector, Adilabad and Agent to Government.
However, there shall be no order as to costs.
20 SN,J wp_27598_2019 Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
___________________________ MRS JUSTICE SUREPALLI NANDA Date: 30.09.2024 Note : L.R. Copy to be marked.
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