Telangana High Court
Manda Kumara Swamy vs State Of Telangana on 21 October, 2020
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION Nos.27956 of 2018 and 9893 of 2019
COMMON ORDER:
Since the facts of the case, issues involved and the points that arise for determination in both these writ petitions are identical, both these writ petitions are being disposed of by this common order.
2. Both these writ petitions are filed by the petitioners under Article 226 of the Constitution of India, seeking an order, direction or Writ, more particularly one in the nature of Writ of Mandamus or any other appropriate writ to (i) restrain the respondents from interfering with the peaceful possession of the lands of the petitioners;
(ii)declare that the construction of the two bed room housing complex in the lands in Sy.Nos.343, 127 and 269 of Shayampet Jagir Village, Warangal Urban, Warangal District, as illegal and arbitrary; (iii) consequently direct the respondents to restore the possession of the lands of the petitioners with consequential benefits.
3. Heard the submissions of Sri M.Vidya Sagar, learned senior counsel, appearing on behalf of Smt.K.Udaya Sri, learned counsel for the petitioners in both the writ petitions, Sri Harinder Prasad, learned Special Government Pleader appearing on behalf of the learned Advocate General, representing the respondents and perused the record.
4. Here, it is apt to state that in W.P.No.27956 of 2018, this Court, by order dated 17.08.2018, while directing to issue notice before admission, directed to maintain status quo in the matter. Subsequently, in W.P.No.9893 of 2019 also, by order, dated 2 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 04.06.2019, status quo was directed to be maintained in view of the order passed in W.P.No.27956 of 2018. Subsequently, the respondents filed vacate stay petitions in both these writ petitions seeking to vacate the status quo order. Thereafter, the petitioners filed amendment applications, i.e., I.A.No.1 of 2020 in WP No.27956 of 2018 and I.A.No.2 of 2020 in WP No.9893 of 2019, on 05.09.2020, seeking additional prayer (by amending the main prayer) i.e., to declare the proceedings No.B/1635/2017, dated 30.08.2017 and 26.10.2017, passed by the Tahsildar, Kazipet Mandal, resuming the land assigned in favour of the petitioners as illegal, arbitrary and in violation of principles of natural justice. The said amendment applications are allowed vide separate order, dated 24.09.2020, and the vacate stay petitions are pending.
5. Shorn of other details, the case of the petitioners, in brief, is that the petitioners in both these writ petitions are landless poor persons belonging to Scheduled Caste community. The-then Tahsildar, Warangal Taluq, vide proceedings in D.Dis.No.D2/3310-72, dated 29.08.1979, assigned total land admeasuring Acs.8.12 guntas in Sy.Nos.343, 127 and 269 of Shayampet Jagir Village, Warangal Urban, Warangal District, to 48 persons.
6. The father of petitioner No.1 in W.P.No.27956 of 2018 by name M.Kattaiah was assigned land admeasuring Ac.0.07 guntas. His name finds place in Sl.No.17 of the said proceedings. Thereafter, Ac.0.03 guntas of land was taken over by the Government for laying road. Thus, he was in possession of Ac.0.04 guntas of land and his name was also entered in the revenue records. The petitioner No.1 in 3 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 W.P.No.27956 of 2018 inherited the said Ac.0.04 guntas of land after the death of his father.
7. The grandfather of petitioner No.2 in W.P.No.27956 of 2018 by name Katta Mallaiah was assigned land admeasuring Acs.0.07 guntas and his name finds place at Sl.No.6 in the said proceedings. The petitioner No.2 in W.P.No.27956 of 2018 inherited the said property after the demise of his grandfather and father, and now he is in possession of Acs.0.05 guntas of land. However, in the revenue records, the name of his grandfather is being continued.
8. The father of petitioner No.3 in W.P.No.27956 of 2018 by name V.Anandam was assigned land admeasuring Acs.0.08 guntas and his name finds place at Sl.No.10 in the said proceedings. Since he is suffering from old age ailments, the petitioner No.3 in W.P.No.27956 of 2018 is looking after the said land on behalf of his father. However, in the pahani copy, dated 06.04.2008, the name of his father of petitioner No.3 in W.P.No.27956 of 2018 is shown against Sy.No.343/21 admeasuring Ac.0.05 guntas.
9. The father of the petitioner No.4 in W.P.No.27956 of 2018 by name K.Saraiah was assigned land admeasuring Ac.0.04 guntas and his name finds place in Sl.No.38 of the said proceedings. Since he is suffering from paralysis, the petitioner No.4 in W.P.No.27956 of 2018 is looking after the said land. However, in the pahani copy dated 06.04.2018, his name is entered against Sy.No.343/43, admeasuring Acs.0.04 guntas.
10. The fathers of the petitioners in W.P.No.9893 of 2019 were assigned land admeasuring Ac.0.07 guntas/Ac.0.05 guntas in Sy.Nos.343, 127 and 269 situated at Shayampet Jagir Revenue 4 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 village, Hanamkonda Mandal, Warangal City and Urban District. Thereafter, Ac.0.03 guntas of land was taken over by the Government for laying of the road. Thus, the fathers of the petitioners in W.P.No.9893 of 2019 were in possession and enjoyment of the remaining land assigned to them. Their names were also recorded in the revenue records. The petitioners in W.P.No.9893 of 2019 have also obtained Pahani copies, which show the names of their fathers.
11. Pursuant to assignment of the said land, the original assignees and after their demise their legal heirs are in possession and enjoyment of the same. While so, the revenue authorities have laid foundation stone(s) on 04.04.2018 in the said lands for various construction activities i.e., for construction of two bed room housing complexes (G+3), for laying BT road from Chintal Gopalpur X Roads to Markaji School via Bokkalagadda, Hanamkonda, BT Road for widening of side canal of Vaddepalli Road to Circuit Road via Rythu Bazar, development of parks etc. When the petitioners in both these writ petitions enquired with the revenue authorities, they were informed that except laying foundation stones, no activity would be undertaken. Thereafter, the authorities have undertaken digging of land and laying foundation stones. At that stage, the petitioners got issued a legal notice, dated 23.04.2018, to the District Collector, Warangal District, and the Tahsildar, Hanamkonda Mandal, to stop illegal works in their lands. The authorities did not give any reply to the said legal notice and are proceeding with digging of land by putting barricades and they also started digging of pits for construction activity. When the petitioners went to meet the public representatives and the respondent officials on 04.04.2018 at the 5 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 place of laying of foundation stones, the police restrained them from entering into their lands to meet them and they were kept in police custody for the whole day and released only after the public representatives and officials left from that place. The petitioners and their family members are in possession and enjoyment of the subject lands since the date of assignment in the year 1979. Their names were also entered in the revenue records and pattadar pass books were also issued in their favour. The action of the respondent officials in undertaking construction activity over the subject lands is wholly irrational and arbitrary. The respondent officials cannot resume the subject lands without initiating appropriate proceedings in accordance with law and accordingly prayed to allow the writ petitions granting the aforementioned reliefs.
12. The respondents filed counters in both these writ petitions denying the allegations made by the petitioners. It is averred that when the ancestors of the petitioners (original assignees) violated the provisions of the A.P. Assigned Lands (Prohibition of Transfer) Act, 1977 (for short, 'Act 9 of 1977') and the Rules made thereunder, the respondent authorities issued notice under Form-I on 19.08.2017 to submit explanation within seven (07) days as to why the land should not be resumed since they have violated the conditions of D-Form Patta and did not bring the subject land into cultivation. The respondents also issued notices under Form-I on 06.10.2017 asking the petitioners to submit explanation within fifteen (15) days as to why the land should not be resumed, since they have sold the said land to one Damera Mercy, vide registered document No.3431/2007, dated 25.07.2002, which is in contravention of the provisions of the Act 9 of 1977. Since no explanation was submitted by the petitioners 6 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 to the said two notices, the respondent authorities, by exercising powers under Section 3(2) of Act 9 of 1977, resumed the subject land under a cover of panchanama, vide proceedings No.B/1635/2017, dated 30.08.2017 and 26.10.2017. Subsequent to resumption, a part of the said land was allotted for two bed room housing scheme formulated by the Government for construction of more than 600 two bed room houses to be allotted to the weaker sections. The construction started in the year 2018 and as on today, more than four blocks have been constructed, each block consisting five floors. Construction of two bed room housing complex on the subject lands is well within the knowledge of the petitioners and they admitted the same in the legal notice, dated 23.04.2018, got issued by them. In fact, the resumption orders passed by the Tahsildar concerned vide proceedings No.B/1635/2017, dated 30.08.2017 and 26.10.2017 were not challenged by the petitioners in these writ petitions. When the said fact was brought to the notice of this Court in the vacate stay petitions filed by the respondent officials, the petitioners filed amendment petitions in these two writ petitions, after two years, seeking amendment of the main prayer, i.e., to declare the orders of resumption passed by the Tahsildar as illegal, arbitrary and in violation of principles of natural justice. Thus, the petitioners are guilty of suppression of material facts. On this ground alone, the writ petitions are liable to be dismissed. The resumption proceedings passed by the revenue authorities as early as in the year 2017 are strictly in accordance with the provisions of Act 9 of 1977 and the same do not warrant any interference under Article 226 of the Constitution of India. The writ petitions are devoid of merits and are liable to be dismissed.
7 Dr.SA, J WP No.27956/2018 & WP No.9893/2019
13. The petitioners filed reply affidavit in both these writ petitions denying the averments in the counter affidavit. It was mainly averred that the petitioners came to know about the resumption proceedings, dated 30.08.2017 and 26.10.2017, for the first time when the said proceedings were filed along with the counter affidavit and as such, they did not seek to set aside the same in the main prayer of these writ petitions. Subsequently, they filed amendment applications seeking to amend the prayer by adding the relief to set aside the said resumption orders. There are contradictions in the resumption proceedings dated 30.08.2017 and 26.10.2017. In the resumption proceedings, dated 26.10.2017, it was recorded that the subject lands were sold to one Damera Mercy, W/o.Prabhudas, vide registered document No.3431/2007, dated 25.07.2002. However, the said document has not been filed before this Court. There is material alteration of the date mentioned in the Form-I notices, dated 06.10.2017, issued in resumption proceedings, dated 26.10.2017. The notices issued to the petitioners under Rule 3 of the Rules filed at pages 19 to 24 and 31 to 36 of the counter affidavit do not contain any acknowledgements. The above events clearly demonstrate that those records were created only to deprive the petitioners of their legitimate right on the subject lands. The resumption proceedings, dated 30.08.2017 refers to the reports of Mandal Girdawar and Village Revenue Officer, Shayampet, dated 05.08.2017 and 19.08.2017. However, the copies of the said reports were not filed before this Court. All these events demonstrate that the entire proceedings are in violation of the provisions under Act 9 of 1977 and the principles of natural justice and fair play.
8 Dr.SA, J WP No.27956/2018 & WP No.9893/2019
14. The learned senior counsel appearing for the petitioners in both these writ petitions made submissions in-line with the averments in the writ petitions and the reply affidavits. It is further vehemently contended that since it is the case of the respondents that the file pertaining to assignment of subject land in favour of the petitioners is not traceable in the office of the Tahsildar concerned, it is not open to the respondents to contend that the conditions of assignment are violated by the petitioners to invoke the provisions of Act 9 of 1977. The resumption proceedings dated 30.08.2017 and 26.10.2017 refers to the enquiry reports, dated 05.08.2017 and 19.08.2017, of the revenue officials. The reason for causing such enquiry and calling for reports was not disclosed in the said resumption proceedings. Section 4 of Act 9 of 1977 empowers the competent authority to take possession of the assigned lands, if it is satisfied that provisions of Section 3 of the said Act have been violated. Rule 3 of the Rules made thereunder stipulates the procedure for eviction of the transferee and taking possession and resumption of assigned lands. The said Rule mandates that 15 days notice is to be issued to the transferees and such notice should be in the forms specified. But in the notices sent in the resumption proceedings, dated 30.08.2017, only seven (7) days time was granted to the petitioners to submit explanation as to why the subject land should not be resumed for not bringing the same into cultivation. Further, the said notices are not in Form-I, as specified in the Rules. Further, the resumption proceedings, dated 30.08.2017, does not disclose the date of service of notices on the petitioners and curiously, the panchanama dated 01.09.2017 discloses that some of the assignees are not available. The resumption proceeding, dated 30.08.2017, further discloses that 9 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 the assignees have not brought the subject land into cultivation and kept it padava. In the absence of any record being available in the office of the Tahsildar concerned regarding the terms and conditions of assignment, such allegation is baseless. Thus, the resumption proceeding, dated 30.08.2017, is illegal, arbitrary and in contravention of the principles of natural justice. Further, the resumption proceeding, dated 26.10.2017, issued by the Tahsildar concerned, has been tampered by the revenue officials by altering the date mentioned in the notices, so as to satisfy the statutory requirement of 15 days notice to the assignees. In fact, the respondents have filed two sets of Form-I notices along with resumption order, dated 26.10.2017. The first set of Form-I notices discloses that said notices were issued to the assignees on 06.10.2017 and the second set of notices discloses the date as 16.10.2017. A careful perusal of the second set of notices discloses that the original date '06' was tampered as '16' with ink. Thus, the date mentioned on the notices sent in resumption order, dated 26.10.2017 was tampered by the revenue authorities, which act does not stand to the test of judicial review. Further, a comparision of signatures of the authority which issued the resumption proceeding filed as material papers in the counter affidavit are also different. The Form-I notices filed along with the counter affidavit reveals that out of 14 assignees referred in the resumption proceeding, dated 26.10.2017, only 8 assignees have received the notice and there is no acknowledgement in respect of the other 6 assignees. Thus, there is no service of notices on all the assignees. The above events clearly show that the entire procedure followed by the respondents in issuing the resumption order 26.10.2017, is farce, fabricated and contrary to 10 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 the provisions of Act 9 of 1977 and thus liable to be set aside. Further, the resumption proceeding, dated 26.10.2017, refers to report of the revenue officials that the assignees have sold the land assigned to them to one Smt.Damera Mercy under a registered document No.3431/2007, dated 25.07.2002, which is absolutely false. The petitioners have not sold the subject land to anyone. Further, no notice has been issued to the alleged purchaser of the subject land and there is no reference as to whether the alleged purchaser is in possession of the said land or not. The administrative authorities, while exercising quasi-judicial powers, are required to follow the objective underlying the rules of natural justice and record reasons in the orders they make and any violation in that regard should be declared as illegal and non-est in the eye of law. The entire exercise undertaken by the respondent officials in passing the impugned resumption proceedings is illegal, arbitrary and against the principles of natural justice and fair play and ultimately prayed to grant the relief sought in both the writ petitions. In support of his contentions, the learned senior counsel had relied on the following decisions.
1. S.N.Mukherjee Vs. Union of India1
2. M/s. Sudalagunta Sugars Limited Vs. Joint Collector, Chittoor2
3. Molli Suraiah and others Vs. The Collector, Vijayanagaram and others3
15. On the other hand, the learned Special Government Pleader representing the respondents vehemently contended that the prayer in the writ petitions, i.e., not to interfere with the possession of the petitioners over the subject land itself is not maintainable, inasmuch 1 (1990) 4 Supreme Court Cases 594 2 (2017) 1 ALT 499 3 Order, dated 22.08.2008, passed in WP No.21432/2000 by High Court of Andhra Pradesh 11 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 as the petitioners have lost their possession over the subject lands, prior to filing of the writ petitions itself, i.e., by virtue of resumption proceedings, dated 30.08.2017 and 26.10.2017. The petitioners are guilty of delay and laches in filing the writ petitions. In fact, the land admeasuring Acs.7.37 guntas in Sy.No.343 situated at Shayampet Jagir Village, Warangal Urban District, was recorded as 'Khariz Khata' and the land admeasuring Ac.0.05 guntas in Sy.No.127 and Ac.0.10 guntas in Sy.No.269 was recorded as 'Poramboke' (Government lands) in the revenue records. Further, land admeasuring Acs.8.12 guntas in Sy.Nos.343, 127 and 269 are Government assigned lands. On 29.08.1979, an extent of Acs.8.12 guntas of land was assigned to various beneficiaries. On 19.08.2017, the Tahsildar, Khazipet Mandal, issued notices to the assignees/legal heirs of the assignees to submit explanation as to why the land assigned to them should not be resumed, since they have violated the terms and conditions of D-Form Patta by not bringing the subject land into cultivation and keeping it padava. The assignees/legal heirs of the assignees failed to submit explanation to the said notices. Thereafter, the Tahsildar, after conducting detailed enquiry, resumed the land vide Proceedings No.B/1635/2017, dated 30.08.2017. Further, on 06.10.2017, show- cause notices in Form-I were issued to the assignees/legal heirs of the assignees as to why the assignment should not be cancelled as they have violated the provisions of Section 3 of Act 9 of 1977 by alienating the assigned land to one Damera Mercy under a registered document No.3431/2007, dated 25.07.2002. Thereafter, the petitioners, have made a representation on 13.10.2017 to the Joint Collector, Khazipet Mandal, Warangal District, stating that they came to know about the allotment of the subject land for construction of 12 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 two bed room houses by the Government and that in view of the non- availability of water, they could not cultivate the subject land and sought one more opportunity to bring the said land into cultivation. While-so, the Tahsildar, Khazipet Mandal, vide Proceedings No.B/1635/2017, dated 26.10.2017, passed orders resuming the land. When the assignees/legal heirs of the assignees refused to receive the said order, the same was affixed at a conspicuous place in the presence of panchas and panchanama was drawn. Since the petitioners have admitted in the representation submitted to the Joint Collector that they are not cultivating the lands assigned to them for whatever reason it may be, the Tahsildar is justified in resuming the subject land. Subsequent to resumption of the subject land, an extent of Acs.5.34 guntas from the subject land and an extent of Ac.1.08 guntas of Government land in Sy.No.343 was handed over to the Roads and Buildings Department for the purpose of construction of two bed room houses for the weaker section. By virtue of amendment to Section 4 of Act 9 of 1977, no duty is cast upon the respondents to put the assignees back into possession of the subject land and the same can be put to use for any other public purpose. The writ petitioners cannot be permitted to improvise their pleadings by way of filing amendment applications and they have to plead all the aspects at the first instance. Construction of two bed room housing complex(s) commenced in the year 2018 and as on today, more than four blocks have been constructed, each block consisting five floors. The photographs filed along with the material papers would substantiate the same. Granting the relief sought in these writ petitions would prejudice the larger interest of the public and would burden the State exchequer. There are no grounds to grant the relief 13 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 sought by the petitioners in these writ petitions and ultimately prayed to dismiss both the writ petitions. In support of his contentions, the learned Special Government Pleader had relied on the following decisions.
1. T.Onuramma and others Vs. Tahsildar, Kadiri and others4
2. Dharma Reddy Vs. Sub Collector, Bodhan5
3. M.Bhoopal Reddy and others Vs. the Collector, Ranga Reddy6
4. Bogireddy Chandra Reddy Vs. Mandal Revenue Officer7
5. Yellamma Vs. State of A.P.8
6. D.Gangadhar Vs. Ch.Chakkara Reddy and others9
16. In view of the above rival contentions, the points that arise for determination in both these writ petitions are as follows:
1. Whether the resumption proceedings No.B/1635/ 2017, dated 30.08.2017 and 26.10.2017, passed by the Tahsildar, Khazipet Mandal, Warangal Urban District, are liable to be set aside for want of sufficient notice, as contemplated under Rule 3 of the Telangana Assigned Lands (Prohibition of Transfer) Rules, 2007?
2. Whether the respondents are justified in resuming the land assigned to the petitioners, vide resumption proceedings No.B/1635/2017, dated 30.08.2017 and 26.10.2017, passed by the Tahsildar, Khazipet Mandal, Warangal Urban District?"
3. Whether the petitioners are entitled for restoration of land, which was resumed by the respondents, vide resumption proceedings No.B/1635/2017, dated 30.08.2017 and 26.10.2017, passed by the Tahsildar, Khazipet Mandal, Warangal Urban District?
4. To what relief?
POINT:
17. The material placed on record reveals that the-then Tahsildar, Warangal Taluq, vide proceedings in D.Dis.No.D2/3310-72, dated 29.08.1979, assigned total land admeasuring Acs.8.12 guntas in 4 1980 (2) APLJ 133 (HC) 5 1987 (1) APLJ 171 (HC) (FB) 6 1990 (1) ALT 110 7 2007 (1) APLJ 398 (HC) 8 2006 (5) ALD 262 9 1996 (1) ALD 372 (DB) 14 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 Sy.Nos.343, 127 and 269 of Shayampet Jagir Village, Warangal Urban, Warangal District, to 48 persons. Among them, the ancestors of the petitioner Nos.1 to 4 in W.P.No.27956 of 2018 were assigned Ac.0.07 guntas, Ac.0.07 guntas, Ac.0.08 guntas and Ac.0.04 guntas of land respectively and their names were shown at Sl.Nos.17, 6, 10 and 38 respectively in the said proceedings. The fathers of the petitioners in W.P.No.9893 of 2019 were assigned land admeasuring Ac.0.07 guntas/Ac.0.05 guntas and subsequently, Ac.0.03 guntas of land was taken over by the Government for laying of the road. Thus, the fathers of the petitioners in W.P.No.9893 of 2019 were in possession and enjoyment of the remaining land assigned to them. The said assigned land was resumed by the Tahsildar, Kazipet Mandal, by passing two resumption proceedings. The Proceedings No.B/1635/2017, dated 30.08.2017, was passed on the ground that the assignees have violated the terms and conditions of D-Form Patta, i.e., not bringing the subject land into cultivation and keeping it padava; and the Proceedings No.B/1635/2017, dated 26.10.2017, was passed on the ground that the assignees have sold the subject assigned land to one Damera Mercy under a registered document No.3431/2007, dated 25.07.2002, which is in contravention of Section 3(1) of Act 9 of 1977. Admittedly, the conditions laid down in the D-Form Patta mandates that the lands assigned are required to be brought under direct cultivation within three years from the date of issuance of D-Form Patta certificate. There is no single document to establish that either the petitioners or their ancestors have brought the subject land into cultivation, though the subject land was assigned as long back as in the year 1979 and resumed in the year 2017. Moreover, the petitioners have categorically admitted in the 15 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 representation, dated 13.10.2017, submitted to the Joint Collector, Khazipet Mandal, Warangal District, that in view of the non- availability of water, they could not cultivate the said land and sought one more opportunity to bring the said land into cultivation. Furthermore, in the impugned resumption proceeding, dated 30.08.2017, it was stated that the Mandal Girdawar and the Village Revenue Officer have locally enquired and reported that the land was not brought under cultivation since the date of assignment and it was kept padava. No iota of evidence has been placed on record by the petitioners to rebut the same. The second resumption proceeding, dated 26.10.2017, was passed on the ground that the assignees have sold the subject land to one Damera Mercy under a registered document No.3431/2007, dated 25.07.2002, which is in contravention of Section 3(1) of Act 9 of 1977. The petitioners contended that there is no such alienation. In such an event, the petitioners ought to have produced the certified copy of the registered document No.3431/2007, dated 25.07.2002, to establish that neither the petitioners nor their ancestors have alienated the subject land to Damera Mercy under registered document No.3431/2007, dated 25.07.2002. There is also report of the Mandal Girdawar and Village Revenue Officer to the effect that the subject assigned land was sold to one Damera Mercy, W/o.Prabhudas, under a registered document No.3431/2007, dated 25.07.2002. The learned Tahsildar has referred that report in the impugned resumption proceedings. Therefore, it cannot be said that there is no alienation of the subject land assigned to the ancestors of the petitioners in W.P.No.9893 of 2019. It is a valid ground to resume the land in terms of Section 3(1) of Act 9 of 1977. The material 16 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 placed on record reveals that before passing the resumption proceedings, dated 30.08.2017, seven (7) days notice was issued to the petitioners to show cause as to why the subject land should not be resumed for violation of conditions mentioned in the D-Form Patta certificate; and before passing resumption proceedings, dated 26.10.2017, fifteen (15) days notice was issued to the petitioners to show cause as to why land assigned to them should not be resumed in view of alienation of subject land to Damera Mercy under a registered document No.3431/2007, dated 25.07.2002, and since no explanation was submitted by the petitioners, the land was resumed.
18. Another crucial aspect in this matter is that there is inordinate delay on the part of the petitioners in filing the writ petitions. The material placed on record reveals that the resumption proceedings were passed on 30.08.2017 and 26.10.2017 and the writ petitions are filed on 07.08.2018 and 27.04.2019 respectively. Thus, there is inordinate delay of about one year in filing one writ petition and about one and half year in filing another writ petition. Admittedly, after resuming the land, the Government laid foundation stones on 04.04.2018 in the said lands for construction of two bed room housing complex(s) for the weaker sections. The material placed on record including the photographs demonstrate the construction of more than four huge two bed room residential block skeletons, each block consisting ground plus three floors, on the subject land by the Government, before filing of these two writ petitions on 07.08.2018 and 27.04.2019. The construction of walls with cement bricks is completed for some blocks and partly completed for some blocks. Here it is apt to state that a writ remedy is a discretionary remedy. The Court exercises its jurisdiction only upon satisfying itself that it 17 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 would be equitable to do so. Delay and laches, indisputably, are the relevant factors which are to be borne in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers, if there is delay on the part of the applicant to assert his right, which, on the other hand, causes prejudice to the opposite party. Even where fundamental right of a party is involved in the matter, it is still within the discretion of the Court whether to grant the relief or not, as pointed out by the Hon'ble Supreme Court in Durga Prasad v. Chief Controller of Imports and Exports10 . However, such discretion has to be exercised judicially and reasonably. In State of Maharashtra Vs. Digambar11, the Hon'ble Supreme Court held as follows:
"How a person, who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court, before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the 10 AIR 1970 SC 769 11 1995 SCC (4) 683
18 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief."
19. Thus, the High Courts, time and again, applied the equitable principles for not granting a relief under Article 226 of the Constitution of India when there is inordinate delay on the part of the applicant/s in approaching the Court. While doing so, the Court, although not oblivious of the fact that no period of limitation is provided for filing a writ petition, but emphasize was laid that it should be filed within a reasonable time. In the instant case, no reasons were assigned by the petitioners in filing these two writ petitions with inordinate delay of one year and one half year. On the other hand, it is the contention of the respondents that after resumption of land, construction activities have been undertaken on the said land by the Government and if the relief sought by the petitioners is granted, it would prejudice the public interest at large and would cast heavy burden on the State exchequer. The leaned senior counsel appearing for the petitioners pointed out defects/flaws in the impugned resumption orders and the procedure adopted by the respondents in resuming the subject land, viz., defects in service of notices to the petitioners/non service of notice on all the petitioners, non furnishing the copy of registered document No.3431/2007, dated 25.07.2002 under which the petitioners/ancestors of the petitioners alleged to have sold the assigned land to one Damera Mercy, non furnishing of reports of the revenue officials basing on which the impugned resumption orders were passed etc. A perusal of the material placed on record reveals that there is material alteration of 19 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 the date mentioned in the notices sent in resumption proceedings, dated 26.10.2017, i.e., the original date '06' was corrected as '16' with ink, in order to satisfy the statutory requirement of 15 days notice to the petitioners. A perusal of the material placed on record further reveals that before passing the impugned resumption proceedings, dated 30.08.2017, only seven (07) days notice was given to the petitioners to show cause as to why the subject land should not be resumed for violation of the terms and conditions of D- Form Patta, i.e., not bringing the subject land into cultivation and keeping it padava. As per Rule 3 of the Rules made under Act 9 of 1977, fifteen (15) days notice is required to be served on the persons against whom the land is sought to be resumed. The question is whether on these grounds, the impugned resumption proceedings, dated 30.08.2017 and 26.10.2017 gets vitiated and are liable to be set aside. As indicated above, the petitioners did not approach this Court immediately after the resumption of the subject land by the Government. They filed these writ petitions much after laying of foundation stone(s) by the Government for various construction activities and commencement of construction of two bed room housing complex(s) in the said land and more than 50% of construction is completed by spending huge public money. Further, it is essential to state that W.P.No.27956 of 2018 was filed on 07.08.2018 and W.P.No.9893 of 2019 was filed on 27.04.2019, wherein, the impugned resumption proceedings, dated 30.08.2017 and 26.10.2017 were not challenged. The petitioners filed amendment applications in both these writ petitions on 05.09.2020, after filing of the counter by the respondents, seeking to declare the said resumption proceedings as illegal, arbitrary and to set aside the 20 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 same. It is also relevant to state that when the foundation laying ceremony has taken place on 04.04.2018, the petitioners enquired about the said ceremony with the revenue authorities. Further, as per the legal notice, dated 23.04.2018, got issued by the petitioners to the District Collector, Warangal District, and the Tahsildar, Hanamkonda Mandal, and the submissions made on behalf of the petitioners, it is clearly established that the petitioners have knowledge of resumption of land. Immediately they did not approach the Court before commencement of construction over the subject site. By the time they approached the Court and obtained interim relief on 17.08.2018 (in WP No.27956 of 2018) and 04.06.2019 (in WP No.9893 of 2019), substantial buildings/structures have come up on the subject site as referred in the foregoing paragraphs. Under these circumstances, the aforementioned defects/flaws in the procedure adopted for resumption of land are not fatal to the case of the respondents and would not, in any way, vitiate the entire resumption proceedings. Some irregularity in the procedure committed in the process of resuming the land cannot be termed as fraudulent resumption, more particularly in view of the petitioners' admitted contravention of conditions stipulated in the D-Form Patta certificate, i.e., not bringing the said land into cultivation and keeping it padava, and alienating the assigned land in favour of some third party. Mere procedural irregularities committed by the administrative authorities in resuming the land assigned to the petitioners and allocating the said land after resumption for construction of two bed room houses for weaker section in the larger public interest by spending huge public money, are weighed against each other, the cause of larger interest of the public deserves to preferred. This 21 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 Court cannot be oblivious to the fact that the petitioners cannot claim to have vested right in the injustice being done on account of mere procedural irregularities committed by the officials in resuming the assigned land, more particularly when the land so resumed is used for betterment of society by spending huge funds of the State exchequer.
20. The learned senior counsel for the petitioners contended that petitioners came to know about the resumption proceedings, dated 30.08.2017 and 26.10.2017, for the first time when the said proceedings were filed along with the counter affidavit. It is also contended that out of the 14 assignees referred in the resumption proceedings dated 26.10.2017, only 8 assignees have received the notices and there is no acknowledgement in respect of the other 6 assignees. On the other hand, the case of the respondents is that since no explanation was submitted by the petitioners within the stipulated time for the notices sent for resumption of land, the impugned resumption proceeding, dated 26.10.2017 was passed. Since the petitioners themselves admitted that 8 out of 14 assignees have received notices in resumption proceedings, dated 26.10.20017, nothing prevented those 8 petitioners to submit explanation within the stipulated time. As per records, on 19.08.2017, the Tahsildar concerned issued notices to the assignees/legal heirs of the assignees to submit explanation for violation of assignment conditions under the provisions of Act 9 of 1977 and the Rules made thereunder. Thereafter, the subject impugned resumption proceedings were passed. Having kept quiet without submitting any explanation within the stipulated time, now it is not open for the petitioners to contend that they came to know about the passing of impugned resumption 22 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 orders for the first time when they were filed along with the counter affidavits.
21. In S.N.Mukherjee's case (1 supra) relied by the learned senior counsel for the petitioners, a Constitution Bench of the Hon'ble Apex Court held that the administrative authorities, while exercising quasi- judicial powers, are required to follow the objective underlying the rules of natural justice and record reasons in the orders they make and any violation in that regard should be declared as illegal and non- est in the eye of law. The learned senior counsel for the petitioners also relied on Sudalagunta Sugars Limited's case (2 supra), wherein, the erstwhile High Court of Andhra Pradesh held that in an enquiry taken up under Section 4 of Act 9 of 1977, the District Collector or the authorized officer shall issue notices in Form-I and Form-II to the transferor and also to the transferee of the assigned land, consider their objections and pass orders as he thinks fit and proper. The learned senior counsel for the petitioners also relied on Molli Suraiah's case (3 supra), wherein, the erstwhile High Court of Andhra Pradesh, having regard to the facts and circumstances of the said case, held that the petitioners were never put to notice nor were they given opportunity to rebut the same and that the action of the authorities is prima facie a clear and blatant violation of rule of 'audi alteram partem' and that the plea that an alternative remedy constitutes a bar to the exercise of jurisdiction by this Court under Article 226 of Constitution of India cannot be slotted into a straightjacket formula and each case will have to be examined on its own merits and that the act of dispossession, if any, by the respondents was only on paper and that the alleged dispossession of the petitioners is found to be illegal and unsustainable.
23 Dr.SA, J WP No.27956/2018 & WP No.9893/2019
22. There cannot be any dispute with regard to the ratio laid down by the Constitution Bench of the Hon'ble Supreme Court in S.N.Mukherjee's case (1 supra). In the instant case, a perusal of the impugned resumption proceedings goes to show that they are not unreasoned/cryptic proceedings. In the impugned resumption proceedings, the Tahsildar concerned had adverted to the reports called for from the revenue officials, notices issued to the parties, relevant provisions of the Act 9 of 1977 and the reasons for passing the said orders. Further, there cannot be any other reason to be mentioned in the impugned resumption proceedings, except the above statutory requirements. The other two decisions relied by the learned senior counsel for the petitioners are distinguishable from the instant case, in view of the peculiar facts and circumstances of the case on hand. Further, it is settled principle of law that each case shall be decided on its own merits.
23. For the foregoing reasons, the relief sought by the petitioners in both these writ petitions cannot be granted. The contentions raised on behalf of the petitioners' merit no consideration, as there is enormous delay on their part in approaching this Court and since more than four huge two bed room residential block skeletons are constructed, each block consisting ground plus three floors, on the subject land by the Government, before filing of these writ petitions, i.e., on 07.08.2018 and 27.04.2019. If the relief as prayed for in these writ petitions is granted, it jeopardizes the public interest and causes great loss to the State exchequer. Further, as the subject land is not vacant and since more than four huge two bed room residential block skeletons have come up on the subject land, the relief of restoration of subject land in favour of the petitioners cannot 24 Dr.SA, J WP No.27956/2018 & WP No.9893/2019 be granted. However, in the given circumstances of the case, since it is an undisputed fact that the petitioners are legal heirs of the original assignees of the subject land, the respondents may examine with regard to the allocation of two bed room flats to the petitioners in the subject two bed room housing complex or at any other place, on an application made by them, if not made on earlier occasion, within thirty (30) days from today, subject to their entitlement and the governing regulations.
24. With the above findings and observations, both these writ petitions are dismissed. The interim order, dated 17.08.2018, granted in W.P.No.27956 of 2018 and the interim order, dated 04.06.2019, granted in W.P.No.9893 of 2019 stands vacated. There shall be no order as to costs.
Miscellaneous petitions pending in both these writ petitions stands disposed of in terms of this common order.
______________________ Dr. SHAMEEM AKTHER, J 21st October, 2020 Bvv