Andhra HC (Pre-Telangana)
Gusani Steels (Pvt.) Ltd., Fatehnagar ... vs Shantha Bai And Others on 29 March, 2000
Equivalent citations: 2000(3)ALD412
ORDER N.Y. Hanumantiiappa, J.
1. All these writ petitions are filed challenging the order passed by the Special Court under Land Grabbing (Prohibition) Act, 12 of 1982 (hereinafter referred to as 'the Act') in LGC No.3 of 1988 dated 20-1-1992.
2. For the purpose of disposal, the rank of the parties is being referred as arrayed before the Special Court and the third parties as third party petitioners.
3. WP No.6065 of 1992 is filed by the respondent Nos.16, 3, 15, 18 and 38 seeking writ of certiorari to declare Sections 7 and 8 of the Act as discriminatory, arbitrary and unconstitutional and quash the judgment and decree of the Special Court under the Act passed in LGC No.3 of 1988 dated 20-1-1992.
4. WP No.24706 of 1996 is filed by the third parties numbering 61 seeking declaration that the judgment and decree dated 20-1-1992 passed in LGC No.3 of 1988 by the first respondent is not binding on the petitioners herein as they are not made parties to the said proceedings as required under 3rd proviso to sub-section (6) of Section 8 of the Act and also for declaration that the proposed action of the respondent Nos.2 and 3 herein pursuant to the judgment and decree dated 20-1-1992 passed in LGC No.3 of 1988 by the first respondent is arbitrary, unreasonable and unjust and the same is not only not in accordance with Rule 15 of the Rules, but also violative of the fundamental rights guaranteed to the petitioners herein under Articles 14, 19(1)(B) and 21 of the Constitution of India.
5. WP No.9846 of 1992 is filed by the original applicants before the Special Court challenging part of the judgment and decree of the Special Court passed in LGC No.3 of 1988, dated 20-1-1992.
6. WP No.19321 of 1996 is filed by the original applicants in LGC No.3 of 1988 dated 20-1-1992 to declare the action of the first respondent in not giving effect to the decision of the special Court under the Act passed in LGC No.3 of 1988, dated 20-1-1992, and not delivering the .possession of the petition schedule property to the writ petitioners as illegal and unconstitutional and consequently to direct the respondents to deliver possession of the petition schedule property forthwith.
7. WP No.27207 of 1996 is filed by the original applicants before the Special Court seeking to declare the action of the respondents 2 to 4 herein in not executing and not giving effect to the decision of the Special Court under the Act in LGC No-3 of 1988, dated 20-1-1992, as arbitrary, unreasonable, unconstitutional and unjust and to declare the action of the respondents 2 to 4 in not delivering the petition schedule property admeasuring Ac.07.36 guntas in S. Nos.130 to 133, situate at Fatehnagar, BalanagarMandal, Ranga Reddy District, to the petitioners as illegal and unconstitutional; and also to declare that the judgment and decree in LGC No.3 of 1988 is binding not only on the persons who were made parties but also on all the persons who are interested in the land grabbed and also to direct the respondents to deliver possession of the petition schedule property forthwith and to call for records and to pass such other order or orders.
8. A few facts which arc necessary to dispose of the above writ petitions in brief are as follows :--The original applicants before the Special Court filed a petition under Section 8 of the Act seeking possession of the petition schedule property from some of the respondents alleging that they are land grabbers. Originally, Smt. Shantha Bai and Smt. Yamuna Bai, who were the daughters of one Sri M. Ram, filed the above application before the Special Court. Subsequently the second petitioner, Smt. Yamuna Bai, died during pendency of the proceedings and accordingly her legal representatives, who are petitioner Nos.3 and 4, were brought on record.
9. The applicant's case before the Special Court was that the land measuring about Ac,16.06 guntas in S. Nos.48, 130 to 133 and 135 situate at Fathenagar village, Balanagar Mandal, Ranga Reddy District, was purchased by them after obtaining an assignment of a decree, dated 25-10-1968, in OS No.55 of 1965 on the file of IV Additional Judge, City Civil Court, Hyderabad, under an agreement of conveyance, dated 23-2-1971, for a consideration of Rs.40,000/- and, subsequently, they took possession of the property. Their claim for compensation was also upheld in Land Acquisition proceedings when a portion of the land was acquired under the Land Acquisition Act. In the said Land Acquisition proceedings, respondent No.36 namely Mr. Hukumlal had also set up a rival claim, but his claim was rejected! According to the applicants, Mr. Hukumlal was their watchman and his services were terminated. Respondent Nos.37 and 38, namely Mr. Kunwar Singh and Mr. Gopi respectively, in the petition are the relatives of respondent No.36, who encroached an extent of land measuring Ac.7.36 guntas, which was a part of the petition schedule property measuring Ac. 16.06 guntas obtained by the applicants under an Assignment Deed.
10. Respondent No.39 namely Mr. M. Parasuramaiah was added as a party to the petition as per the order dated 28-11-1988 and respondent Nos.40 to 53 were added as parties to the petition as per the order dated 17-2-1989 who claimed that they are the protected tenants of the land. Respondent No.51 died during the pendency of the proceedings and his legal representatives are also added as respondent Nos.54 to 58 on 11-12-1991. Respondent Nos.1, 2, 7, 10, 11, 13, 17, 19, 22, 23, 29, 32, 33 and 34, though served with notices, remained absent. As such, they were set ex parte. As respondent Nos.54 to 58 remained absent, they were also set ex parte. Some of the respondents filed their counters denying the claim of the applicants. As the claim of the respondents was differing with each other, the Special Court divided them into five sets, viz.
(1) Respondent No.39, who set up a rival title to the petitioners;
(2) Respondent Nos.40 to 58, who claim to be the protected tenants in respect of this suit land;
(3) Respondent Nos.36 to 38, who claim to be in possession in their own right;
(4) Respondents who claim right, title or possession through respondent Nos.36 to 38;
(5) The other respondents who claim possession in their own right and who set up independent right and interest.
11. According to respondent No.39, who set up a rival claim regarding title and possession for a portion of petition schedule property, he obtained a decree in OS No.9 of 1962 on the file of I Additional Judge, City Civil Court, Hyderabad against one Mr. Mahesh Chand for enforcing an agreement of sale dated 11-12-1958 executed by him. A decree said to have been obtained against Mahesh Chand in OS No.55 of 1965 by the vendors of the. petitioners is not binding on him and unenforceable. His further case was that in fact it was so held in the suit filed by him in OS No.343 of 1983 on the file of Additional Subordinate Judge, Ranga Reddy Dislrict, against the petitioners wherein the petitioners have claimed counter relief against him, which was dismissed. He further contended that respondent Nos.l to 38 are admittedly land grabbers and hence they are liable to be evicted from the petition schedule property and insofar as the reliefs in the application sought by the petitioners are concerned, he has no objection.
12. Respondent Nos.40 to 53 filed a separate counter stating that the petitioners are not exclusive owners and that their claim for compensation is still pending in OP No.l 19 of 1987 on the file of Additional Subordinate Judge, Ranga Reddy District, and the application for dispossessing them, who are protected tenants, is not maintainable.
13. Respondent Nos.36, 37 and 38 filed separate counters. According to respondent No.36, he is in possession of the property for more than the statutory period. He put the respondent Nos.37 and 38, who are his near relatives, in possession of a portion of the petition schedule property. He denied that he was the watchman of the petitioners. According to him, the petitioners allowed respondent Nos.36 to 38 to construct the structures. As such, they are not liable to be evicted from the petition schedule property.
14. The other set of respondents, viz., Respondent Nos.3, 4, 5, 6, 7, 14, 15, 16and 18 claimed their title or interest through respondent Nos,36 to 38 either as purchasers or as tenants. Respondent Nos.3, 16 and 18 filed a common counter and respondent Nos.4, 6, 7, 14 and 15 filed separate counters. Respondent No.5 adopted the counter filed by respondent No.37. Respondent Nos.31 and 35 also filed separate counters claiming independent title over the petition schedule property. Respondent Nos.8, 9, 24, 25, 27, 28, 29 and 30 filed a Counter, which was adopted by respondent Nos.12, 20, 21 and 26. They set up an independent claim of adverse possession denying the title of the petitioners.
15. On the basis of above pleadings, the Special Court framed the following points for consideration :
(1) Whether the petitioner is the owner of the suit land;
(2) Whether the respondents have grabbed the said land;
(3) To what relief ?
The Special Court also framed a few more points namely :
(1) Whether any of the respondents perfected title by adverse possession ?
(2) Whether the application is maintainable against respondents 40 to 58 who are protected tenants;
(3) Whether the application is maintainable in the absence of stating date of cause of action;
(4) Whether the application is maintainable in the absence of specified areas, occupied by each of the respondents ?
16. In support of their case, the applicants have examined their employee as PW1 and got marked Exs.Al to A12. Ex.A1 is the certified copy of deed of assignment and conveyance, dated 26-2-1971, executed by Freny Rashid Chenoy and others in favour of Yamuna Bai and Shantha Bai. Ex.A2 is the Award No.1/2197/82, dated 1-4-1986, passed by the Special Deputy Collector, Land Acquisition (General), Hyderabad, in respect of Ac.3.30 guntas in Survey Nos.4, 5, 6, 130, 131, 132 and 133. Ex.A3 is the xerox copy of order in Writ Petition No.5506 of 1986, dated 26-9-1986, passed by this Court. Ex.A4 is the certified copy of order in Writ Appeal No.1338 of 1986, dated 5-11-1986, passed by a Division Bench of this Court. Ex.A5 is the xerox copy of judgment in OS No.55 of 1965 on the file of V Additional Judge, City Civil Court, Hyderabad. Ex.A6 is the certified copy ofmemo filed by Burma Shell in IA No.325 of 1973 in OS No.55 of 1965, dated 9-8-1973, on the file of the V Additional Judge, City Civil Court, Hyderabad. Ex.A7 is the certified copy of joint memo fifed by Burma Shell in 1A No.325 of 1973 in OS No.55 of 1965, dated 5-7-1975, on the file of V Additional Judge, City Civil Court, Hyderabad. Ex.AS is the xerox copy of document, dated 4-11-1972, under which Mahesh Chand handed over possession to the applicants. Ex.A9 is the copy of Memorandum of Grounds of Appeal in AS No.4 of 1989, dated 27-1-1989, on the file of District Judge, Ranga Reddy District. Ex.A10 is the copy of Memorandum of Grounds of Appeal in AS No.5 of 1989, dated 27-1-1989, on the file of the District Judge, Ranga Reddy District. Ex.All is the xerox copy of pahani, for the years 1978-79 in respect of Survey Nos.48, 130, 131, 132, 133, 135 and 136 of Fathenagar village. Ex.A12 is the certified copy of common judgment in AS Nos.4 of 1989 and 5 of 1989, dated 23-1-1990, on the file of District Judge, Ranga Reddy District.
17. in support of their case the respondents have examined RWs.1 to 7 and got marked Exs.B] to B36. Ex.Bl is the xerox copy of common judgment in OS Nos.344 of 1983, 343 of 1983 and 477 of 1983, dated 29-9-1988, on the file of Additional Subordinate Judge, Ranga Reddy District. Ex.B2 is the xerox copy of sanction plan, dated 22-2-1972, in respect of plot No.-nil-, Survey No.130. Ex.B3 is the xerox copy of Rental Agreement, dated 24-10-1985, executed by Smt. A. Sarojini in favour of Sri S. Gautham Chand Jain. Ex.B4 is the xerox copy of sale deed dated 12-9-1988, executed by Smt. Sarojini in favour of Sri Gautham Chand Jain. Lx.B5 is the xerox copy of House Tax Receipt, dated 20-7-1988, for the years 1987-88 and 1988-89, issued to Smt. A. Sarojini for House No.11-175/3, Fathenagar. Ex.B6 is the Registered Sale Deed, dated 12-9-1988, executed by Smt. Sarojini in favour of Sri S. Cautham Chand Jain. Ex.B7 is the xerox copy of plan issued by Gram Panchayat, Fathenagar, in respect of plot No.-ni!-, Survey No.130, Fathenagar. Ex.B8 is the original Rental Agreement, dated 24-10-1985, in between Smt. A. Sarojini and Sri S. Gautham Chand Jain. Ex.B9 is the original House Tax Receipt, dated 20-7-1988, for the years 1987-88 and 1988-89. Ex.B10 is the copy of letter, dated 30-9-1988, from S. Gautham Chand Jain to the Commissioner, Kukatpally Municipality, for mutation of H.No.l 1-175/3, Fathenagar, in his favour. Ex.B11 is the letter, dated 17-3-1989, from the Commissioner, Municipal Council, Kukatpally, to Sri S. Gautham Chand Jain mutating his name in respect of H.No.11-175/3, Fathenagar. Exs.B12 to B15 are the Rental Receipts, dated 5-12-1985, 5-1-1986, 5-9-1987 and 5-4-1985 respectively issued by Smt. A. Sarojini to MM Jewellery in respect of H.No.11-175/3, Fathenagar. Ex.B16 is the xerox copy of extract of final record of tenancy for the years 1985-51. Ex.B17 is the certified copy of plaint in OS No.986 of 1981, dated 22-9-1981, on the file of V Additional Judge, City Civil Court, Hyderabad. Ex.B18 is the copy of judgment in OS No.253 of 1983, dated 15-3-1989, on the file of Principal Subordinate Judge, Ranga Reddy District. Exs.BI9 to B24 are the xerox copies of pahanies for the years 1972-73, 1977-78, 1979-80, 1980-81, 1981-82 and 1982-83 respectively in respect of Survey No.131. Ex.B25 is the xerox copy of judgment in OS No. 126 of 1976, dated 18-11-1981, on the file of District Munsif, Hyderabad West and South. Ex.B26 is the copy of District Gazette, Hyderabad, Errata, to notifications under the Land Acquisition Act. Ex.B27 is the xerox copy of affidavit in Writ Petition No. 1784 of 1979, dated 21-2-1979, on the file of High Court of Andhra Pradesh. Ex.B28 is the copy of order in Writ Petition No. 1784 of 1979, dated 17-9-1988, passed by this Court. Exs.B29 to B31 are the original Land Revenue Receipts, dated 10-7-1977, 6-7-1975 and 15-1-1976 respectively for the years 1975, 1975 and 1976 respectively in respect of Survey Nos.130, 132 and 133. Ex.B32 is the xerox copy of Power of Attorney, dated 10-2-1982, in respect of suit lands executed by Respondent No.36 and his two sons in favour of respondent No.37. Ex.B33 is the Land Revenue Receipt, dated 20-1-1973, in respect of the suit lands. Ex.B34 is the pahani patrika for the years 1983-84 in respect of suit lands. Ex.B35 is the order, dated 29-3-1984, passed by the Tahsildar, Vallabhnagar, to record the name of Hukumlal in the pahani in respect of suit land. Ex.B36 is the certified copy of Report of the Deputy Tahsildar, Vallabhnagar, dated 28-3-1985, showing Hukumlal as in possession of the Survey Nos.130 and 132.
18. The petitioners marked Ex.A1, dated 26-2-1971, which is a certified copy of registered deed of Assignment and Conveyance executed by one Mr. Freny Rashid Chenoy and others in favour of Smt. Yamuna Bai and Smt. Shantha Bai, applicants 1 and 2 before the Special Court, in respect of a total extent of land measuring Ac.16.6 guntas in Survey Nos.48, 130 to 133 and 135 in Fathenagar village, Balanagar Mandal, Ranga Reddy District. The Special Court, having taken into consideration Exs.Al and A2, held that the applicants have established their right, title and interest over the petition schedule property and accordingly held that they are the owners of the petition schedule property. It was also held by the Special Court that there is no enforceable right of respondent No.39 against the applicants whereas the respondents failed to establish their claim made before the Land Acquisition Officer in respect of Ac.2.20 guntas of land out of the acquired land measuring Ac. 16.06 guntas. The Special Court has also taken into consideration Ex.A3 and found that the claim of the so-called protected tenants is untenable. The contention of the respondents that the applicants, instead of entering into the witness box, examined their employee as PW1 and as such they have not established their title over the petition schedule property was negatived by the Special Court. Regarding" the rival title set up by the respondent No.39, the Special Court referred to various judgments rendered in OS Nos.9 of 1962, 343 of 1983 and 344 of 1983 including judgments rendered in AS Nos.4 of 1989 and 5 of 1989 filed by the petitioners. The Special Court has also taken into consideration the findings given by the appellate Court that respondent No.39 has no locus standi to file OS No.343 of 1983. The Special Court has also taken into consideration the findings of the appellate Court that the applicants cannot file a suit against respondent No.39 so long as they are not dispossessed or sought to be dispossessed by respondent No.39. Regarding the claim of respondent Nos.40 to 58, who claim to be the protected tenants under A.P. Telangana (Area) Tenancy Act, the appellate Court found that they did not set up any title. The Special Court also found that respondent Nos.40 to 58 are in possession of land covered by Survey No. 131 alone and that too, land covering 8 mulgies and a vacant land to the extent of 500 square yards and as such they cannot resist the claim of the petitioners in respect of their title, possession or interest over the petition schedule property. The Special Court also found that respondent Nos.37, 38 and 4, who adopted the pleadings of respondent No.36, have failed to establish their title. Regarding adverse possession pleaded by 5th set of respondents, the Special Court has taken into consideration Ex.A2 and found that respondent Nos.40 to 58 are not in possession of Survey Nos.130, 132 and 133 whereas their claim is that they are in possession of 8 mulgies and 500 square yards of vacant land in Survey No. 131. The Special Court also found that the petitioners have established their case as averred by them. However, the Special Court found that respondent No.35 is in possession of 73 square yards, over which a building lies, for a statutory period of over 12 years and thus he has perfected his title by adverse possession. Thus, the Special Court has rejected the claim of the applicants in respect of 8 mulgies and 500 square yards of vacant land. Regarding cause of action, the Special Court answered that in view of the statement given by PW2 that encroachment started in the year 1985, the application is maintainable. Regarding the issue whether the application is not maintainable, as the boundaries of the property are not described, the Special Court turned down the same by making a reference in respect of S. Nos.130 to 133 including Ex.A2 wherein an extent of Ac.2.26 guntas of land was acquired. The Special Court, while making a reference to the documents filed by the respondents, found that respondent No.36 and others claimed through him tailed to establish that they have perfected their title to the petition schedule property. The Special Court thus held with reference to the revenue records in respect of Survey Nos.130 to 133, the extent of those Survey Numbers can be ascertained and identity can easily be established. The Special Court also observed that the encroachment by the respondents was only with a view to take the property illegally and respondent No.36 has not only encroached the land but also has an intention to occupy the land illegally. It shows that his intention was to occupy the land of the applicants illegally. Regarding the claim of the other respondents the Special Court found that they are also land grabbers who claim through respondent No.36. Accordingly, the Special Court held that respondent Nos.36 to 38 and also respondent Nos.3, 4, 5, 6, 7, 14, 15, 16 and 18 who claimed through respondent Nos.36 to 38 are also land grabbers. According to the Special Court, respondent Nos.8, 9, 12, 20, 21, 24, 25, 26, 27, 28, 29, 30 and 31 have occupied the land without entitlement with a view to take possession illegally. Accordingly, the Special Court allowed the application filed by the applicants holding that they are entitled for possession except Survey No. 130 where there is admittedly a burial ground in an extent of Ac.2.00 for pardhi people, which in fact was admitted by the learned advocate for the applicants. The Special Court held that the petitioners are the owners of property in question and are liable to be restored to possession excluding Ac.2.00 in Survey No.130 and 8 mulgies and 500 square yards in Survey No.131 and also house property claimed by Respondent No.35 under Ex.B7 in Survey No.130 after vacating the respondents and structures therefrom. The Special Court also held that Respondent No.36 is responsible for grabbing the land, through respondent Nos,37 and 38, and in the interest of justice directed prosecution against respondent Nos.36, 37 and 38 alone by registering the said application as a complaint under Sections 4 and 5 of the Act and also awarded costs of Rs.2,000/- against respondent Nos.36 to 38 payable to the applicants.
19. Aggrieved by the said order, Respondent Nos.16, 3, 15, 18 and 38 before the Special Court, the writ petitioners herein, filed Writ Petition No.6065 of 1992 against the applicants and the other respondents. Later, respondent No.60, the State of Andhra Pradesh, represented by its Chief Secretary, was impleaded by an order of this Court dated 28-10-1999. One Mr. Narendra Kumar Keshavlal had filed affidavit on his behalf and also other respondents before the Special Court contending that the order passed by the Special Court is erroneous and it ought to have rejected the evidence of PW1 as inadmissible. According to the writ petitioners, the Special Court erred in holding that the applicants, who are the respondent Nos. 1 to 4 herein, are the owners of the petition schedule property. The respondent Nos.3 and 4 claiming their interest over the petition schedule property under a will alleged to have been executed by one Smt. Yamuna Bai was not produced before the Special Court. The alleged theory of will was not spoken to by PW1. The respondent Nos.3 and 4 failed to prove their interest over the petition schedule property. The Special Court should not have granted the reliefs prayed by the applicants on consideration of evidence and granting of such reliefs is quite incorrect. The writ petitioners therefore contended that the order passed in LGC No.3 of 1988 dated 20-1-1992 is illegal, unconstitutional and violative of Sections 7 and 8 of the Act and same be struck down.
20. Smt. Shantabai, first applicant before the Special Court, first respondent herein, filed a counter on her behalf and on behalf of respondents 3 and 4 denying the averments made by the writ petitioners as untenable. On the other hand, she also contended that the allegations made in the writ petitions are quite vague. Sections 7 and 8 of the Act are quite valid. Thus contending, the respondents sought that the writ petition be dismissed.
21. WP No.24706 of 1996 is filed by the third parties numbering 61 for declaring that the order dated 20-1-1992 passed by the Special Court in LGC No.3 of 1988 is not binding on them as they are not parties to the said LGC No.3 of 1988 and for declaring that the proposed action of respondent Nos.2 and 3 pursuant to the orders in the said LGC No.3 of 1988 is arbitrary, unconstitutional and not in accordance with the Rule 15 of the said Rules. Their case is that they are all petty business people having residential houses and carrying on business in S. Nos.130 to 133 in Fathenagar village, Balanagar Mandal, Ranga Reddy District. They purchased small extents of land ranging from 50 square yards to 250 square yards from their vendors either under agreements of sale or registered sale deeds on various dates during the period 1980-87. Earlier, this disputed property was under the jurisdiction of Fathenagar Gram Panchayat till 1986. Later, it came under the control of Kukatpally Municipality. The plans for construction of their residential houses and mulgies granted prior to 1986 were approved by the Gram Panchayal and thereafter by the Kukatpaliy Municipality. But, the respondents taking advantage of the order dated 20-1-1992 passed by the Special Court in LGC No.3 of 1988 arc trying to evict the writ petitioners herein. Their further case is that they are in possession for more than 12 years purchasing the same property from the respondent No.7, namely Hukumlal. The procedure contemplated under sub-section (6) of Section 8 of the Act was not followed. Thus contending, the writ petitioner sought to allow the writ petition.
22. WP No.9846 of 1992 is filed by the applicants before the Special Court, against the respondent Nos.35, 40 to 50 and 52 to 58 therein, questioning the order passed by the Special Court in LGC No.3 of 1988, dated 20-1-1992, insofar as rejecting their claim for 73 square yards and 500 square yards of vacant land and also 8 mulgics having accepted the correctness of Exs.A7 and A8 under which possession of property in S. Nos.130 to 133 was delivered to the applicants and finding that they are not entitled to 73 square yards of land in S.No.130 and likewise, possession for 500 square yards of vacant land and 8 mulgies as incorrect. According to the applicants, the Special Court should not have rejected the claim of the applicants in respect of the above extent in the absence of the respondents proving their title by adverse possession. The Special Court should not have taken into consideration the claim of some of the respondents before the Land Acquisition Officer, which was rejected by the Land Acquisition Officer.
23. WP No.19321 of 1996 is filed by the applicant before the Special Court contending that respondents 1 to 3 herein, viz., the Revenue Divisional Officer; the Mandal Revenue Officer and the Revenue Inspector failed to perform their duties cast on them under Rule 15 of A.P. Land Grabbing (Prohibition) Rules. It is also contended that when an order is passed deciding the rights of the parties, the same shall be communicated to the Revenue Divisional Officer to give effect to the said order. The Revenue Divisional Officer on receipt of such an order, has to issue directions deputing an officer not less than the rank of Revenue Inspector to take possession of the grabbed land and to deliver the same to the persons entitled. If there is any obstruction in taking delivery of the property, the Revenue Inspector is entitled to take police assistance. The respondent Nos. 1 to 3 instead of deputing an officer under Rule 15 of the said Rules and also inspite of the representations given by the applicants on several dates including on 4-1-1993 upto 2-9-1996 have not taken any steps. Hence, it is prayed to issue direction to the respondent Nos.l to 3 to implement the order passed by the Special Court in LGC No.3 of 1988 dated 20-1-1992 to take possession of the petition schedule property on behalf of the Court and to deliver the same to the applicants forthwith.
24. In the counter filed by Smt. Shanta Bai, one of the applicants before the Special Court, the allegations made by the third parties, who are the writ petitioners herein, were denied. It is further contended that when the proceedings were pending, if the writ petitioners had any interest over the petition schedule property, nothing prevented them to gel themselves impleaded in the said proceedings. The writ petitioners were aware of the above proceedings throughout. 'Further, they are aware of the earlier proceedings before this Court in WP No.23019 of 1996 wherein this Court directed the respondents 2 and 3 to give four weeks time to evict the petitioners from the petition schedule property. As a counter-blast to the eviction order, the land grabbers have chosen to file the present writ petition. It is the further case of writ petitioners that they are in possession of the petition schedule property. The plea of the protected tenants has also been rejected by the competent Court.
25. WP No.27207 of 1996 is filed by the applicants for declaring that the action of respondent Nos.2 to 4 in not executing and not giving effect to the decision of the Special Court in LGC No.3 of 1988 dated 20-1-1992 is arbitrary, unreasonable, unconstitutional and unjust; for declaring that the action of respondent Nos.2 to 4 in not delivering petition schedule property measuring Ac.7.36 guntas in S. Nos.I30 to 133 situate in Fathenagar village, Balanagar Mandal, Ranga Reddy District, to the petitioners is illegal; and also for declaring that the judgment and decree passed by the Special Court in LGC No.3 of 1988 dated 20-1-1992 is binding not only on the persons who were made parties but also on all the persons who are interested in the land grabbed and for directing the respondents to deliver the possession of the petition schedule property forthwith and to call for records.
26. Sri Raman, learned Counsel appearing for the petitioners in WP No.6065 of 1992 contended that the order of the Special Court is arbitrary and illegal for the reasons that the applicants did not enter the witness box to prove their case. On the other hand, they tried to prove their case through PW1. The applicants tried to set up their claim on the schedule property by way of assignment but the same was not registered. As such there was no conveyance of the property. The Special Court did not consider the evidence given by the respondents in proper perspective. If the same was considered, it's finding would have been that the respondents are in possession of the schedule property. The applicants claimed an area of Ac.7.36 guntas, which is more than the ceiling limit as prescribed under Urban Land (Ceiling and Regulation) Act. As such they are not entitled to hold more than the ceiling limit. The applicants 3 and 4 claimed the property as legal heirs of applicant No.3 on the basis of a will but the said will was neither produced nor proved. In addition to that, applicants 3 and 4 were not examined. According to him when the applicants failed to prove that the respondents are in unlawful possession of the property, the Special Court should not have ordered eviction of the respondents.
27. Sri Roman also attacked the vires of Sections 7 and 8 of the A.P. Land Grabbing (Prohibition) Act, 1982. According to him Sections 7 and 8 have given unlimited and uncontrolled power to the authorities. The Special Tribunal has been created by virtue of amendment to Section 7. There is no rationale behind in introducing the Special Tribunal. According to him, there is discrimination regarding the powers of Special Court and the Special Tribunal. Against the order of the Special Tribunal an appeal lies to the Special Court, whereas against the order passed by the Special Court, no such appeal. Because of this the applicants always be in advantageous position to choose the forum of their choice. Thus it offends Article 14 of the Constitution. No guidelines are given before taking cognizance and how the cognizance has to be taken. The same is left to the discretion of the Presiding Officer. Against the order passed by the Special Court no further appeal lies except filing a writ petition under Article 226 of the Constitution. But the scope to interfere with the orders of the Special Court under Article 226 is very much limited, namely the judicial review is limited to the decision processing but not the decision itself. When an application is filed, the Special Court can take cognizance or it can also take cognizance suo motu. But no such discretion is given to the Special Tribunal. There is also discrimination in the schedule to the Act. A special privilege has been conferred on the Special Court which can ignore the guidelines whereas the procedure to be followed by the Special Tribunal shall be in strict compliance of the provisions of the Act and Rules. According to the learned Counsel, the Special Court is given the powers of civil Court and the Court of Sessions under Section 9 of the Act. But such powers are not conferred on the Special Tribunal. To support his contentions, the learned Counsel placed reliance on some of the authorities.
28. Sri Venkat Reddy learned senior Counsel appearing for the petitioners in WP No.24706 of 1996 who are 61 in number contended that they are not parties to the proceedings. They are all poor persons belonging to the weaker sections of the society. They own either small houses or petty shops on the land. They all purchased small bits of land from respondent No.36 and others. According to them, the respondent No.36 and others were in possession of the land for more than 20 to 30 years. The petitioners obtained permission or licence for construction of houses. Thus they are not land grabbers. During the year 1996 there was a threat of dispossession of the petitioners by the Mandal Revenue Officer and the Revenue Divisional Officer from the land in their possession. Then they filed WP No.23019 of 1996 which was allowed on 13-10-1996 witii a direction that the Mandal Revenue Officer shall give four weeks notice and take action of eviction. Before passing an order in LGC No.3 of 1988, the petitioners though in possession of the schedule property were not notified and heard in the matter. As such the said order does not bind them. According to Sri Venkat Reddy, Sections 7 and 8 of the Act are violative of Article 14 of the Constitution of India. According to him, subsequent to the orders passed by this Court in WP No.23019 of 1996, the authorities, without initiating proceedings seeking eviction, are harassing the petitioners. He also contended that if any action against the petitioners is sought to be initiated, it is only after compliance of Rule 15 of the Land Grabbing Rules.
29. As an answer to these contentions raised above, the advocate appearing on behalf of the applicants and also the Government Pleader submitted that there is no illegality or arbitrariness in the orders passed by the Special Court. The Special Court properly considered the request of the applicants and a just order was passed. Article 226 is not an appealable jurisdiction where this Court can once again re-appreciate the evidence and give its own findings. Non-examination of the applicants personally will not vitiate the proceedings. The evidence given did establish that they are land grabbers subsequent to 1985. Thus they are liable to be evicted. According to them Sections 7 and 8 of the Act are valid and constitutional. Creation of two forums is neither violative of Article 14 of the Constitution of India nor confer any special advantage on certain class of litigants. On the other hand, creating two forums is for the reasons as explained in the preamble of the Act and also for some more reasons as explained in Sections 7 and 8 of the Act. The contention of the respondents that Sections 7 and 8 are unconstitutional and ultra vires of the Act, is unfounded and does not merit. Rejection of tlie claim of the applicants by the Special Court in respect of 8 mulgies and 573 square yards is quite incorrect and illegal. According to applicants when the respondents failed to establish that they are in lawful possession of the schedule property, the Special Court should have ordered their eviction. Secondly, when the Court passed an order holding that the respondents have grabbed the land, it is the duty of the authorities to give effect to the said order forthwith. Their failure to do so amounts dereliction of duties.
30. No counter is filed by the others to meet the contentions raised by the applicants in the above three writ petitions.
31. Before considering how far the orders passed by the Special Court is correct and lawful, it is better to deal with the constitutional validity of Sections 7 and 8 of the Act first. In order to hold whether a particular Act or provisions or a scheme or Rules is unconstitutional or violative of Article 14 of the Constitution or not, the Court has to look into the very object of the Act or Rules in question. Before the enactment of the Act, it was brought to the notice of the Government that systematic and organized attempts are being made by certain lawless persons individually or in groups to grab the land belonging to the Government, a local authority, a religious or charitable institution or endowment, including wakf or any other private person, the land grabbers are forming bogus cooperative housing societies with a view to grab the land and hand it over to the developers who in turn form apartments or plots, put them for sale at high rates with a view to accumulating unaccounted wealth and thus depriving the needy persons of their chance to get a site at a lesser price. With a view to stop such unlawful activities of land grabbers, A.P. Land Grabbing (Prohibition) Act, 1982 has been introduced. Creating two special forums to deal with the land grabbing matters is to see that the matters are settled in expeditious manner because if such issues arc to be dealt with by the civil Court, it may take considerable time. Thus, on the one hand it avoids delay in deciding such cases and on the other it assures speedy recovery of the land so grabbed by virtue of powers, civil and criminal, conferred on the Special Forum. Thus, indirectly the Special Court constituted under the Act on the one hand decide the title and ownership of a person and on the other hand if it is found that the land in question is grabbed unlawfully and continued to be in unlawful possession, the Special Court by exercising its special powers, can pass an order of eviction of such person even by force and also launches criminal proceedings.
32. Section 2 sub-section (d) defines 'land grabber'. Section 2 sub-section (e) defines 'land grabbing'. Section 3 of the Act declares that any land grabbing by any person in any form as unlawful and any activity therewith or arisen out of the said land grabbing is a offence punishable. Section 4 of the Act prohibits a person from committing the act of land grabbing. Further, if any person continues to be in occupation even after the commencement of the Act in unlawful way of the land grabbed belonging to the others shall again be guilty of offence punishable under the Act. If any person contravenes the provisions of subsection (1) or sub-section (2) he shall be liable for conviction with a punishment of imprisonment for a term which shall not be less than six months but which may extend to five years, and with a fine which may extend to five thousand rupees. Thus, even an abettor of land grabbing has been brought within the definition of land grabber. Section 5 of the Act speaks about the penalty for the offence in connection with land grabbing. Section 6 does not spare even the companies, if they grabbed the land, from the consequences of conviction and punishment. Section 7 of the Act deals with constitution of Special Courts. To achieve the object of the Act, the Government can constitute the Special Court with the persons as mentioned in sub-sections 2 and 3 manned by a Chairman and other four members. Sub-section (5A) of Section 7 gives powers to the Special Court to make regulations in conformity with the provisions of the Act or the Rules made therein regarding the procedure to be followed to conduct the cases. Sub-section (5C) of Section 7 speaks about the placing of regulations before the Legislature for its approval. Subsection (5D)(i) speaks about the Special Court to follow its own procedure and subsection (5D)(ii) deals with the powers of the Special Court to try every offence punishable under the Act in a summary way and Sections 263 to 265 of Criminal Procedure Code as far as possible be made applicable to the Special Court. Section 5(D)(iii) deals with the powers to the Special Court that when it is found that a person committed an offence of land grabbing it shall order that possession of such land be restored to the owner after evicting by force, if necessary, any other person who may be in possession of the property.
33. Section 7-A deals with creation of Special Tribunals and their powers. This provision was inlroduced by way of amendment to the Act. The Special Tribunal gets power to try the cases whose cognizance was not taken by the Special Court relating to any alleged act of land grabbing or with respect to the ownership and title either before or after the commencement of the Act. If any case brought before it, prima facie, found a frivolous one, it shall reject the same without further enquiry. If the Special Tribunal finds that any case brought before it in its opinion is a fit case to be tried by the Special Court it may transfer the same to the Special Court by recording the reasons for such transfer. While holding enquiry, the Tribunal has to follow the procedure contemplated under the Code of Civil Procedure. Against the order of the Tribunal, an appeal lies to the Special Court on question of law, if such appeal is preferred within 60 days from the date of judgment and order of the Tribunal. While taking cognizance, the person concerned shall be heard in the matter. Like the Special Court, the Tribunal has got powers to award compensation in terms of money for wrongful possession. Before passing an order, it shall give an opportunity to the land grabber to make a representation or to adduce evidence, if any. The time limit fixed for disposal of the case before the Special Tribunal is six months. It has got all powers of a civil Court.
34. Section 8 of the Act, speaks about the procedure to be followed by the Special Court which reads as follows:
"(1) The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawftil possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit;
(1-A) The Special Court shall, for the purpose of taking cognizance of the case, consider the location, or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any olher relevant matter.
Provided that the Special Court shall not take cognizance of any such case without hearing the petitioner.
(2) Notwithstanding anything in the Code of Civil Procedure, 1908 (Central Act 5 of 1980), the Code of Criminal Procedure, 1973. or in the Andhra Pradesh Civil Courts Act, 1972, (Act 9 of 1972) any case in respect of an alleged act of land grabbing or the determination of questions of title and ownership to, or lawful possession of any land grabbed under this Act, shall subject to the provisions of this Act, be triable in the Special Court and the decision of Special Court shall be final....."
35. A reading of the above sections suggest that the object of creating Special Tribunal and Special Court, though similar the Special Court is conferred with more powers than the Special Tribunal, namely having appellate jurisdiction on the orders passed by the Special Tribunal and transferring of cases by the Special Tribunal to the Special Court in certain cases or vice versa. The Special Court is also conferred with the powers of civil Court and the Court of Sessions.
36. The main attack of Mr. Raman is that by constituting two different forums a special treatment is given to the Special Courts, which is discriminatory. It is also his case that against the order of the Special Tribunal an appeal lies to the Special Court but no appeal lies against the orders of the Special Court. If a citizen who is aggrieved by an order of the Special Court, has no chance to approach another forum by way of an appeal except approaching the High Court by invoking its special original jurisdiction under Article 226 of the Constitution, the scope of which is very much limited and the High Court cannot interfere with the findings of the Special Court unless there is an error apparent on the faee of the record. Thus contending he submitted that Sections 7 and 8 are violative of Article 14 of the Constitution of India.
37. Before considering whether a particular provision is unconstitutional, we have to see whether sufficient proof has been placed and the allegations made in that context shall have a basis. Vague allegations are no material to show discrimination and the request to declare a particular provision as discriminative shall fail as held by the Supreme Court reported in Ajay Kumar Mukharji v. Local Board of Barpela, AIR 1965, SC 1561.
38. When a provision in the statute is said to be unconstitutional, while dealing with the same, the Supreme Court in the case of Dhirendra v. Superintendent & Remember of Legal Affairs, AIR 1954 SC 424, held as follows:
"Now it is well settled that though Article 14 is designed to prevent any person or class of persons for being singled out as a special subject for discriminatory Legislation, it is not implied that every law must have universal application to all persons who are not by nature, attainment or circumstance, in the same position, and that by process of classification the State has power of determining who should be regarded as a class for purposes of Legislation as a class for purpose of Legislation and in relation to a law enacted on a particular subject; but the classification, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be achieved and cannot be made arbitrarily and without any substantial basis. The notification, in express terms, has not indicated the grounds on which this set of cases has been segregated from other set of cases falling under the same sections of the Indian Penal Code. The learned Judges of the High Court however thought that this set of cases was put into one class because of their having the 'common features that a mass of evidence regarding the genuineness of thumb impressions and regarding the existence or otherwise of persons required consideration and this was bound to take such a long time that it would be very difficult if not, impossible, for a juror to keep proper measure of the evidence'."
39. In the case of M.K Gopalan and another v. The Slate of Madhya Pradesh, , the Supreme Court held that a law vesting some discretion in an authority cannot be termed as discriminatory so as to say the same hit by Article 14 of the Constitution.
40. When the classification is rationale and based on intelligible differentia and discloses the object sought to be achieved, it cannot be said that such classification is unconstitutional as held by the Supreme Court reported in Kangshari Haldar v. State of West Bengal, .
41. In the case of Ramtanu Cooperative Housing Societyy Limited v. State of Maharashtra, , the Supreme Court held that by virtue of introducing two Courts to decide the issue cannot be said that there is a procedural discrimination between the Maharashtra Industrial Deveiopment Act, 1961 and the Land Acquisition Act. The relevant portion is extracted herein :
"There is no procedural discrimination between the Maharashtra Industrial Development Act, 1961 (3 of 1962) and the Land Acquisition Act. The Maharashtra Industrial Development Act is a special one having the specific and special purpose of growth, development and organisation of industries in the State of Maharashtra. The Act has its own procedure and there is no provision in the Act for acquisition of land for a company as in the case of Land Acquisition Act. The Land Acquisition Act is a general Act and that is why there is a specific provision for acquisition of land by the State for public purpose and acquisition of land by the State for companies. Under the Land Acquisition Act acquisition is at the instance of and for the benefit of a company, whereas under the Maharashtra Act acquisition is solely by the State for public purposes. The two Acts are dissimilar in situations and circumstances. In the Maharashtra Act there is no restriction on the powers of the Collector in the matter of determination of compensation, although the approval of Government may be necessary in the Government interest."
42. The principles laid by the Supreme Court, in the case of V.C. Shukla v. State, , and the Division Bench of this Court, in the case of S. Srinivasa Rao v. High Court of A.P. & others, 1988 (2) ALT 586, supports the view already explained above.
43. The Supreme Court, in the case of State of A.P. v. Mohanlal, , while considering the scope of Section 7 of the Act held that the same is valid and constitutional and not violative of any of the Articles of the Constitution.
44. In view of the above discussion and the settled legal position, merely because two forums have been created that does not mean in any way they are conflicting with each other and discriminative. On the other hand, the duty of both the forums is to achieve the object that has been contemplated in the Act. Hence, Sections 7 and 8 are neither discriminative nor violative of Article 14 of the Constitution of India.
45. The respondents contended that the Special Court committed an error in ordering their eviction without considering the evidence that was adduced by the parties. Thus contending, they requested this Court to reappreciate the findings of the Special Court which is impermissible in view of the principle laid down by the Supreme Court, in the case of Abdul Rehman v. The State Transport Appellate Tribunal, , wherein the Supreme Court held that the scope of Article 226 should be reluctant to interfere with or disturb the decision of specially constituted Tribunals as It is not an Appellate Court to reappreciate the entire evidence and give its own finding other than the one given by the Special Court or Special Tribunal, In similar circumstances the Division Bench of this Court, in the case of Mohd, Iqbal v. N. Prabhakar, (DB), held as follows:
"Article 226 of the Constitution of India to interfere with such finding of fact in other words, on finding of fact, when a finality has been reached by a Court, it is not open for judicial review under Article 226 of the Constitution. When similar question was cropped up before this Court in the case of Tadi Surya Rao v. Dr. Gurubhavatulu Ramakrishna Rao, a Division Bench of this Court held as follows:
"Before considering the rival contentions .urged by the learned Counsel for both sides, we must restate the well accepted legal principles concerning the limits of the power of judicial review, since the matter at length has been argued by Sri Poornaiah, learned Counsel for the petitioner drawing our attention in extenso to the evidence endeavouring to convince us to take a view different from the one arrived at by the Special Court. As the questions determined by the Special Court attained finality by virtue of Section 8(2) of the Act, any enquiry by us of a nature akin to the exercise of appellate jurisdiction is plainly forbidden."
The celebrated passage from the judgment of Lord Am in R. v. Electricity Commissioners, 1924 (1) KB 171 at 204 serves as the foundation in the modem times for the issue of a writ of certiorari.
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty of act judicially in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
The duty to act judicially may arise in varied situations and it is difficult to define precisely, the circumstances under which such duty may arise. Each case turns upon its own facts. Gajendragdkar, J., (as the then was) in Syed Yakoob v. Radhakrishnan, , after reviewing the case law, has stated the legal position for issue of a writ of certiorari under Article 226 of the Constitution of India."
"A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court for Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order or whether the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is however no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact readied by the inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the fact of record can be corrected by a writ, but not an error of fact, however grave it may appear to be.....if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari 'but' a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court."
Elaborating what is meant by an error apparent on the face of the record, the learned Judge held:
"Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record."
46. Stating that in judicial review, the Court is not concerned with the decision but with the decision making process, Lord Brightman held in Chie Conssstable v. Evans, (1982) I WLR 1155.
"Judicial review is concerned not with the decision but with the decision making process. Unless that restriction on the power of the Court is observed the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
The permissible grounds on which the power of judicial review could be exercised were staled by Lord Diplock in C.C.S.U. v. Minister for Civil Service, 1985 AC 374 : (i) illegality; (ii) irrationality; and (iii) procedural impropriety. Accepting the parameters for the exercise of the power of judicial review as held by the British Courts, our Supreme Court held in Dwarkadas Marfatia and Sons v. Board of Trustees, Bombay Port, :
"It is not within the purview ot a Court to substitute the decision taken by a constituted authority simply because the decision sought to be substituted is a better one."
Thus under Article 226 of the Constitution of India, this Court is neither a fact finding authority nor it has power to reappreciate the evidence when we have been asked to decide legal issue under Article 226 of the Constitution. All that we have to see is whether there is any procedural illegality or irregularity or any violation of the statutory rights or denial of fundamental rights. From the material placed before us, it is difficult to hold the existence of any of the above circumstances in order to interfere. On facts also, the Special Court while discussing elaborately held all the points against the petitioner."
47. This view has been followed subsequently in the case of P. Ravinder and others v. Smt. Ethirajamma and another, (DB). In our view, the contentions of the respondents (petitioners herein) that there is no proper appreciation of the evidence by the Special Court before passing the order of eviction does not stand to reason in view of the principles laid down by the Supreme Court and this Court in the decisions cited supra and for the reason that neither any error apparent on the face of the record nor any violation of principles of natural justice nor any of the Statutes has been established in this case.
48. Sri Venkat Reddy, learned Counsel appearing for the petitioners in WP No.24706 of 1996 contended that the petitioners therein were not parties to the proceedings in LGC No.3 of 1988 and as such the order passed in the said LGC No.3 of 1988 does not bind them. It is their case that they are claiming their possession from respondent No.36 and others who have been declared by the Special Court as land grabbers. The land grabber includes the person who originally grabbed and it included the successors-in-interest and not the transferees. But, the said contention has no merit because the successors-in-interest does not mean, only the legal heirs of the grabber, it includes the transferees from the original land grabber as held by the Division Bench of this Court in the case of New Jaji Labour Society v. Haji Abdul Rahaman Saheb and Ors., (DB). In our view the WP No.24706 of 1996 filed by the 61 petitioners is premature and misconceived. Further it runs contrary to the earlier orders passed by this in WP No.23019 of 1996 dated 13-10-1996.
49. Thus viewed from any angle, there is no merit in the contentions raised by the respondents. Regarding the contentions raised by the applicants that the Special Tribunal should not have rejected their claim in respect of 73 square yards and 8 mulgies and 573 square yards respectively have no merit for the reasons given above. Regarding the request made by all the applicants in other two writ petitions, the authorities shall implement the order or directions of the superior Court in accordance with Rule 15 of the A.P. Land Grabbing (Prohibition) Rules, 1988 does deserve to be accepted and ordered accordingly.
50. Accordingly, Writ Petition Nos.6065 of 1992 and 24706 of 1996 filed by the respondents and third parties respectively and Writ Petition No.9846 of 1992 filed by the original applicants are dismissed, whereas Writ Petition Nos. 19321 of 1996 and 27207 of 1996 filed by the original applicants, are allowed directing the authorities to give effect to the orders of the Special Court to evict the grabbers and handover the delivery of the property to the applicants, if necessary by force, within three months from this date positively. There shall be no order as to costs.