Andhra Pradesh High Court - Amravati
Chintaparthi Manchala vs The A.P. Lokayutha, on 10 July, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION Nos.28005 and 24048 of 2011
COMMON ORDER:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) The Writ Petition No.28005 of 2011 is filed seeking Writ of Mandamus to declare the order passed by the respondent No.1 dated 22.10.2010 and 15.02.2011 and the consequential order dated 03.08.2011 passed in Complaint No.1229/B1/2008 as illegal, arbitrary, unconstitutional and violation of fundamental rights and consequently set aside the impugned orders dated 22.10.2010 and 15.02.2011 and the consequential order dated 03.08.2011 passed in complaint No.1229/B1/2008 of the respondent No.1 by restoring the power supply to the service connections of the petitioners in Sy.No.13 and 15 of Avilala Village, Tirupati Rural Mandal, Chittoor District.
The Writ Petition No.24048 of 2011 is filed seeking Writ of Mandamus to declare the order passed by the respondent No.1 dated 15.02.2011 and the consequential order dated 03.08.2011 passed in Complaint No.1229/B1/2008 as illegal, arbitrary, unconstitutional and violation of fundamental rights and consequently set aside the impugned orders dated 15.02.2011 and the consequential order dated 03.08.2011 passed in complaint No.1229/B1/2008 of the respondent No.1.
The petitioners are in possession and enjoyment of small extents of lands having been purchased under various documents covering survey numbers 13 and 15 of Avilala Grampanchayat, Tirupati Rural Mandal, Chittoor District and some of the title deeds are filed along with these petitions.
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HACJ & MSMJ WPs_28005 and 24048_2011 Originally the land belongs to Banjara and uncultivable land. During 18th century or during the earliest part of 19th century, the then Mahant of the Mutt granted Saswatha Patta in favour of the ancestors of vendors of the petitioners for the land in Sy.No.13, 15 and 17 of Avilala Village. In 1971 the Assistant Commissioner, Endowments, In-charge of SSH Mutt filed various civil suits for recovery of possession of land from the Ryots before Principal District Court, Tirupati, viz., O.S.Nos.93 to 106 of 1071 and 114 to 123 of 1971 and 147 of 1971, 215 of 1971 and 216 of 1971, 217 of 1971 for declaration of title and recovery of possession of land from the Ryots. All these batch of suits were dismissed after full-fledged trial in Tirupati Courts in 1977 as Hathiramji Mutt failed to prove the title over the said land, the trial Court concluded that the Mutt could not establish its right, title and interest to enable the Court to grant decree in its favour and held that the predecessors of the petitioners are in possession of the property and became owners of the property. The appeals preferred by the Mutt against the judgment of trial Court in various suits referred above were also ended in dismissal by the District Court, Tirupati and the consequential Second appeals were met with the same fate. Therefore, admittedly the Mutt is not the owner and possessor of the land. Since the predecessors of the petitioners become lawful owners, being in possession by perfecting title and the respondent No.7 herein lost its right to recover possession, small families including the ryots divided the lands into small extents due to heavy debts and started selling land in small extents after obtaining permission from the Grampanchayat concerned and they were assessed to tax.
The families residing in the small houses constructed houses in their small extents of lands and obtained water connections, 3 HACJ & MSMJ WPs_28005 and 24048_2011 electricity connections and enjoying the same since then. Admittedly, the predecessors in title individually living in the properties in respect of their land purchased since long time with all amenities. The respondent Nos.5 and 6 after due verification of the possession and enjoyment of the respective houses of the persons living in the houses granted electricity connections.
At any point of time the respondent No.7 is not owner of the property in Sy.No.15 (Part) and the same was acquired and compensation was paid. The claim of the respondent No.7 was rejected as the same was not the owner of the property.
While the matter stood thus, the respondent No7-Mutt knowing fully well that it is not the owner of the property covered by survey numbers 13, 15. (Part) and 17/2, 17/3 and 17/5, approached the respondent No.1 and filed complaint making serious allegations against the petitioners and other official respondents alleging that the petitioners are illegal occupants and their possession is unlawful and the service connections given and in existence cannot be continued and they should be removed by the respondents 5 and 6. In the complaint it is urged that at no place the right, title and ownership of the complainant/respondent No.7 herein was mentioned. They have not even mentioned the details of the civil proceedings including suits, for declaration of title which went up to High Court and ended in dismissal of the claim of the respondent No.7 herein. Suppressing these facts complaint was lodged without impleading the petitioners and other official respondents.
On the basis of the complaint lodged in the year 2008 dated 06.11.2008, the respondent No.1 called for report from the respondent No.3 - Revenue Divisional Officer and in turn, the 4 HACJ & MSMJ WPs_28005 and 24048_2011 respondent No.3 submitted a report without reference to the orders of the High Court in the civil proceedings on 07.02.2011 and copy of which is placed on record. But the respondent No.1 passed an order stating that the respondent No.7 shall submit status report in view of the fact that the structures existing in the land are all encroachments and unauthorized occupations and they are still growing if no security is put up to prevent the encroachments and the respondent No.2 is further directed to see that no power connections and water connections are provided to the occupants. This order was passed behind the petitioners without notice and against the principles of natural justice. Therefore, the order passed by the respondent No.1, without hearing the petitioners, is illegal and the same is liable to be quashed declaring as illegal, arbitrary and unconstitutional.
The respondent No.1 also passed exparte order dated 15.02.2011. In pursuance of the order dated 15.02.2011, respondent Nos.5 and 6 started disrupting the power supply and harassing the petitioners and other existing owners. Neither the respondent No.1 nor the respondent Nos.2 to 7 intimated the orders of the respondent No.1. Therefore, the action of illegal interference under the guise of exparte orders of the respondent No.1 created panic in the minds of the petitioners, which caused lot of disturbance in their houses. During the process of monitoring encroachments, various reports were submitted by the Tahsildar to the District Collector, more particularly dated 02.07.2011 stated that the respondent No.7 filed writ petitions before the High Court seeking direction to evict the existing owners of the property including disconnection of the power supply and the said matters are pending for adjudication. Therefore further action can be taken soon after the final orders passed by the High Court.
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HACJ & MSMJ WPs_28005 and 24048_2011 The High Court was pleased to consider all the claims of the existing owners including the applications in a vacate stay petition and finally concluded, while vacating the stay obtained, holding that the respondent No.7 failed to establish its right, cannot seek such relief and dismissed the petition filed by the respondent No.7. The order was passed without giving an opportunity to the petitioners in complaint No.1229/2008/B1, dated 02.08.2011 on the basis of the statement of the respondent No.7 that the petitioners are all encroachers and directed the removal of the encroachments including disconnection of electricity supply etc. The orders passed by the Respondent No.1 dated 22.10.2010 and 15.02.2011 and the consequential order dated 03.08.2011 are wholly unsustainable and without jurisdiction as they are passed against the principles of the natural justice.
It is contended that the Andhra Pradesh Lokayukta Act (herein after referred to as "Act") is intended for the investigation of Administrative actions. Section 7 of the Act confers jurisdiction on Lokayukta and Upa - Lokayukta to investigate any action referred to therein and any allegation in respect of such action as defined under Section 2(a) & (b) respectively. Section 10 provides for the procedure in respect of investigation which includes notice and opportunity to the public servant concerned and competent authority concerned. Section 12 of the Act provides for communication of its finding and recommendation to the competent authority by a report in writing. Thereupon the competent authority is obliged to examine the report and to take action without any further enquiry. A perusal of the scheme of the Act shows that the investigation under Section 7 and reports and recommendations contemplated under Section 12 can 6 HACJ & MSMJ WPs_28005 and 24048_2011 only be in respect of an action to be taken against a named erring official, in respect of specified "action" of the named public servant against whom "allegation" is made, that too after giving him adequate opportunity and hearing. There is no provision under the Act which authorised the Lokayukta and Upa Lokayukta to direct the officials to take any action, so as to interfere with rights of the private parties. In the present case, the same assumes greater significance as the petitioners were not made parties to the proceedings before the respondent No.1 and no notice was issued to the petitioners. The order passed by the respondent No.1 is illegal and contrary to the judgment of this Court in "S.Jagadeswar v. The Lokayukta, A.P.1", wherein it was held that "even a request by a high authority like Lokayukta would almost always be regarded as command only and hence such high authorities must desist from making "light hearted requests" as ordinary their such request is to invoke greatest respect from other authorities of the State and would be treated as command".
Therefore, the order passed on the complaint made by the respondent No.7 before the respondent No.1 is wholly unsustainable and the respondent No.1 passed such order, without investigation and notice, to remove the petitioners from the land in their possession and the said direction affects the rights of the parties as the same is totally without jurisdiction and if the respondent No.7 wanted to remove the encroachments, they have to approach the civil Court, thereby the order passed by the respondent No.1 directing the respondent Nos.5 and 6 to implement the orders is illegal. In the similar circumstances, some of the villagers filed W.P.No.24048 of 1 1996 (4) ALD 282 (DB) 7 HACJ & MSMJ WPs_28005 and 24048_2011 2011 and W.P.No.26850 of 2011 dated 11.10.2011 and 26.09.2011 and the Court was pleased to suspend the operation of the impugned order. Since the petitioners have no other alternative remedy, they approached the Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India and prayed for the reliefs stated above.
Respondent Nos.2, 3 and 4 filed counter specifically denying the material allegations interalia contended that Sri Mahantu has made a complaint to Lokayuktha, Andhra Pradesh, Hyderabad vide Complaint No.1229/2008/B1 requesting to safeguard the Mutt property. The District Collector, Chittoor vide Roc.E6/18927/2009, dated 23.02.2009 has submitted a detailed comprehensive report about the occupation of various persons and details of cases filed by the occupiers in various courts to the Registrar, Hon'ble Lokayuktha, Hyderabad.
It is submitted that the Hon'ble Lokayuktha, Hyderabad vide order dt.29.10.2010 have passed the orders as follows:
"The Joint Collector as well as the Tahsildar, Tirupati Rural to take appropriate action for removal of encroachments in respect of the lands listed in S.No.13,15 and 17/2,17/3,17/5 of Avilala Village and restore the lands to the Mutt expeditiously and submit report to the Institution. The Panhayat Secretary, Avilala was also directed not to issue any House Numbers to the encroachers of the Mutt land in S.No.13,15 and 17 of Avilala Revenue Village".
During the course of inspection, it is noticed that several persons including the present petitioners have unauthorisedly occupied the lands along with other S.Nos.15, 17 including S.No.13 which belongs to Hathiramjee Mutt as per village accounts and they are trespassing and raising structures in the land. The occupiers have filed several Civil Suits/Writ Petitions/Second appeals before the 8 HACJ & MSMJ WPs_28005 and 24048_2011 Courts for regularisation. The respondent No.7 also filed W.P.No.26252 of 2008 before the High Court of Andhra Pradesh, Hyderabad against the Commissioner, Tirupati Municipal Corporation, Tirupati and 11 others requesting to issue directions to the respondents to stop further encroachments and also to stop further unauthorized construction by the encroachers in the lands, in S.No.13,15 and 17 of Avilala Village.
The Assistant Commissioner, Endowments, Tirupati took cognizance of the encroachments and issued notices to the tenants U/s 82 in S.No.13 of Avilala Village. The Joint Collector, Chittoor has also convened a meeting on 29.09.2010 with the officials concerned with regard to protection of Sri Swamy Hathiramji Mutt lands.
The specific contention of the respondents is that the petitioners are only occupiers of the subject land and if their occupation is authorised by Mutt authorities, they are entitled to claim authorised electricity connection and water connection etc. According to Section 12 of A. P. Panchayat Raj Act, no piece of land shall be used as a site for construction of a building and no building shall be constructed or reconstructed and no addition or alteration shall be made to any existing building without the permission of the Gram Panchayat. The occupiers do not have any permission from the Panchayat Secretary. Therefore, the Joint Collector, Chittoor has issued instructions to the Panchayat Secretary, Avilala to implement the provisions of the existing Panchayat Raj Act.
The A.P.Electricity Regulatory Commission vide Proceedings No.Secy/01/2006, dated 06.01.2006 has made certain regulations to 9 HACJ & MSMJ WPs_28005 and 24048_2011 provide Electricity service connection. Accordingly, any applicant for electricity service connection has to produce one of the following documents.
(a) Registered document from the legal owner of the land in question.
(b) NOC issued by the Panchayat Secretary.
(c) In case, the occupier is not the owner, he has to produce an indemnity bond given to him by the owner.
But the petitioners did not comply with the conditions, obtained electricity connection. The respondent No.7 is seized of the matter and it has issued several instructions to remove the encroachments. The allegations made against these respondents in the petitions are devoid of merits and liable to be dismissed and requested to pass appropriate orders.
Respondent No.7 filed counter denying material allegations interalia contending that Sri Swamy Hathiram Bhavajee Varu, the great Vaishnavite Saint, devotee of Lord Sri Venkateswara, established mutt both at Tirupati and Tirumala with two-fold objectives, to provide shelter and food to Sadhus, Sanyasis, Byragies visiting Tirumala to worship Lord Venkateswara and "Gosamrakshana" and it has been in existence for centuries. To maintain the Mutt and to accomplish the objectives mentioned above, the successive Mahanths of the Mutt acquired vast extents of land in and around Tirumala and Tirupati, with the offerings and donations made by the devotees of Sri Swamy Hathiramjee Varu. The extent of land in Sy.No.13, 15, 17/2, 17/3 and 17/5 is Ac.109.60 cents, Ac.33.45 cents, Ac.0.36 cents, Ac.13.74 cents and Ac.17.60 cents respectively and the total extent is Ac.174.75 cents. The said land is 10 HACJ & MSMJ WPs_28005 and 24048_2011 in one block and the same is agricultural land. In title deed bearing No.2937 the lands mentioned above were granted as Inam in favour of Bugga mutt Tirupati and Gundluri Venkamma equally for up keep of Kasam Kaluva of Avilala village. Thereafter, Gundluri family vide registered document dated 23.12.1856 permanently leased out their half share in the said lands in favour of Bugga mutt Tirupati without reserving right to recover or enter into said lands. Thus, the respondent No.7 also acquired land in different survey numbers under different sale deeds from different persons including the schedule property. The Mutt leased out the land in Sy.Nos.13, 15 and 17 of Avilala Village to the Ryoths in the nearby villages of Tirupati and when they failed to pay the rent, the respondent No.7 filed batch of civil suits on the file of II Additional District Munsif Court and Principal District Munsif Court, Tirupati for recovery of possession of property and for damages. The said suits were decreed partly directing the defendants therein to pay cist to the Mutt. Thus, though the relief of possession was rejected in the said batch of civil suits on the ground of limitation, and the defendants therein were made liable to pay rent to the Mutt. Therefore, the defendants in the batch of civil suits are the tenants of the Mutt. Hence, the contention that the Mutt is not the owner of land in question cannot be accepted. In the year 1985, when the tenants of the Mutt in respect of lands in question made attempts to convert the agricultural lands into commercial use, the Mutt filed suit O.S.No.245 of 1985 on the file of Additional Subordinate Judge's Court, Tirupati for permanent injunction to restrain them from converting the land in Sy.Nos.13, 15, 17/2, 3 and 5 of Avilala Village leased out to them, from agriculture purpose to commercial purpose. After full-fledged trial, the said suit was decreed, wherein the tenants have been restrained by way of permanent 11 HACJ & MSMJ WPs_28005 and 24048_2011 injunction from converting the land into house sites or for any other purpose other than for cultivation. Thus, the alleged predecessors in title of the petitioners were restrained from converting the land from agricultural purpose to any other purpose in O.S.No.245 of 1985 and the said decree is binding on the alleged vendors of the petitioners. The allegation that the predecessors in title divided the land into small extents and sold the same is denied. It is further contended that the petitioners filed W.P.No.3128 of 2011 challenging the demolition of compound walls and electricity lines. The said writ petition was heard in detail by the Court and the same was dismissed by an order dated 28.04.2011.
Similarly, the land in Sy.No.15 was acquired for formation of road under Land Acquisition Act and the Award was referred to Civil Court under Section 30 of Land Acquisition Act. The same is numbered as L.A.O.P.No.1 of 2000 on the file of Principal Senior Civil Judge Court, Tirupati. The said reference was answered in favour of the 3rd party and aggrieved by the said orders, the Mutt preferred appeal in L.A.A.S.No.77 of 2002 before this Court and the same is pending for adjudication.
The Apex Court upheld constitutional validity of Section 82 of Act 30 of 87 in the year 2001 and rules were framed through G.O.Ms.No.379 dated 11.3.2001. By virtue of operation of said rules, all the existing agricultural leases of land belonging to charitable institutions and endowments stands cancelled and the concerned institution is granted liberty to recover possession of the land after issuing notice in Form No.1 through the Assistant Commissioner, Endowment Department, having jurisdiction. In view of the same the respondent No.7 issued notices in Form-I to all the tenants i.e. 12 HACJ & MSMJ WPs_28005 and 24048_2011 petitioners' vendors' vendors. Then the petitioners' vendors' vendor filed W.P.Nos.2587, 2583 of 2007 and 26518 of 2008 challenging Section 82 Notices, stating that they are in possession of the land in question. In the said writ petitions, there are interim orders directing to issue notices under Sections 83 and 84 and take possession. Accordingly, Section 83/84 notices were given to the petitioners' vendors' vendors. Subsequently, the Assistant Commissioner of Endowments by following procedure, evicted the encroachers from the land and handed over the same to the mutt under cover of Panchanama dated 17th/18th November, 2007 to an extent of Ac.57.47cents approximately and the said eviction proceedings have become final. Yet, the evicted encroachers once again encroached into the land of the respondent No.7 in the above survey numbers, then the respondent No.7 made several unsuccessful representations to the respondent Nos.2 to 6 for protection of its land. Due to the inaction of the respondents 2 to 6, the respondent No.7 made a complaint dated 06.11.2008 to the respondent No.1 - Lokayukta. The Lokayukta issued various directions dated 22.10.2010, 30.12.2010, 15.02.2011 and 02.08.2011. The said complaint is pending before the Lokayukta, thereby this Court cannot pass any orders disturbing the orders passed by the Lokayukta.
The writ petitioner Nos.1 to 8 along with 14 others filed two writ petitions viz. W.P.No.25236 of 2010 and W.P.No.3128 of 2011. W.P.No.25236 of 2010 was filed challenging the threatened action to dispossess them from their house sites in Sy.No.13 of Avilala village, wherein the respondent No.7 is not made as party, though the land in question belongs to the respondent No.7. This Court disposed of the said writ petition by order dated 06.10.2010 while recording the statement of Assistant Government Pleader that "the land in question 13 HACJ & MSMJ WPs_28005 and 24048_2011 belongs to Hathiramji Mutt and in pursuance of report called for by the Hon'ble Lokayukta, the respondent No.4 has merely inspected the properties for the purpose submitting report on the encroachments and there is no proposal for evicting the petitioners, who are allegedly encroachers and that in future, if the petitioners are proposed to be evicted, the respondents will do so, only by following the due process of law". The said order has become final. The respondent Nos.2 to 6 demolished the compound wall and removed the electricity lines of the encroachers. Subsequently, the writ petitioners Nos.1 to 8 along with 14 others, filed Writ Petition No.3128 of 2011, challenging the demolition of compound walls and removal of electricity lines. After hearing, the said writ petition was dismissed by this Court on 28.04.2011.
Similarly, there is lot of litigation both in Civil Court and High Court and in all the litigations narrated above, the respondent No.7 succeeded being the owner of the property and that these petitioners are encroachers and they are liable to be evicted by due process of law. Since the orders passed by the Lokayukta are within the jurisdiction of Lokayukta, they cannot be disturbed by this Court by exercising power of judicial review and requested to dismiss the petition against the respondent No.7.
During hearing, learned counsel for the petitioners Sri N.Subba Reddy on behalf of Suresh Kumar Reddy Kalava contended that the Lokayukta has no jurisdiction to pass any order exercising power under Sections 7, 10 and 12 of the A.P. Lokayukta Act, 1983 (for short "the Act") and the order under challenge by way of interim order passed is beyond the scope of final order to be passed by the Lokayukta and apart from that the allegations made in the complaint 14 HACJ & MSMJ WPs_28005 and 24048_2011 do not constitute "allegation" as defined under Section 2 (b) of the Act, thereby the Lokayukta exceeded its jurisdiction and passed orders under challenge. Therefore, the petitioners have no remedy except to approach this Court invoking Article 226 of Constitution of India and this Court can exercise power of judicial review when the authorities exceeded its jurisdiction or exercised jurisdiction illegally or irregularly, drawn the attention of this Court to various documents filed separately to substantiate their claim and requested to set aside the interim order passed by the Lokayukta. In support of his contentions, learned counsel relied on the judgment of the Apex Court rendered in "Rama Rao v. The Lokayukta2"
Whereas learned Government Pleader appearing for official respondents supported the orders passed by the Lokayukta in all respects.
Learned counsel for the respondent No.7 demonstrated as to how the petitioners encroached the property even after they were removed from the property and the petitioners, who are encroachers, not entitled to claim discretionary relief. Learned counsel for the respondent No.7 further contended that in view of the long litigation, both in Civil Court and High Court clinches the issue that the petitioners are encroachers and they are not entitled to claim any discretionary relief under Article 226 of Constitution of India. Apart from that the order passed by the Lokayukta is strictly in accordance with law, such orders were passed exercising power under Rule 22 of the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigatiaon) Rules, 1984. Therefore, this Court cannot interfere with such orders 2 LAWS (SC)-1996-5-39 15 HACJ & MSMJ WPs_28005 and 24048_2011 while exercising power under Article 226 of Constitution of India and prayed for dismissal of the writ petitions.
Since the petitioners in W.P.No.28005 of 2011 questioned the jurisdiction of the Lokayukta to pass impugned orders, it is necessary to advert to the orders passed by the Lokayukta and they are extracted herein.
Order dated Order dated Order dated
22.10.2010 15.02.2011 03.08.2011
A report dt.19.10.2010 A report dt.8.2.2011 is A report dt.13.7.2011 is
is filed on behalf of submitted by the District submitted by the District
Hathiramji Mutt signed by Collector, Chittoor Collector, Chittoor, stating
the Mahant Varu, District, narrating the that the writ petitions filed
containing lists of recent history of the case relating by the Weaker Sections'
encroachments as well as to the lands in Sy.Nos.13, Mutt land Residents
old encroachments. As per 15 and 17 of Avilala Association, were
the report, old village, Tirupati Rural dismissed. In the light of
encroachments are Mandal belonging to Sri the dismissal of the writ
subject matter of various Hathiramjee Mutt. In the petitions filed by the third
proceedings before the report, it is stated that it parties, instead of taking
various authorities is subject matter of action by the revenue
including the Courts. In number of proceedings authorities for eviction of
so far as the new either before the Hon'ble the encroachers, if any, it
encroachments, which are High Court in the writ appears the District
enumerated as 182 are petitions or before the Collector, Chittoor issued
not subject matter of any Civil Courts in suits. The directions to the Revenue
proceedings before report further shows that Divisional Officer,
authorities. The list shows some of the structures Tirupathi, to take legal
that very few RCC were partly removed and opinion of the Government
buildings are constructed, there was lot of resistance Pleader for implementing
while majority of them are from the occupants of the the orders of this
temporary sheds. In fact, land leading to law and Institution.
one person by name order problem in Avilala There is absolutely
Narasa Reddy is stated to village. It is stated that on
no need to seek any legal
be in occupation of 25 5.2.2011, the Panchayat
opinion, especially when
plots, which are shown at Secretary, Avilala, Tirupati there are no orders
145 to 170. Out of 25 Rural Mandal has
preventing the revenue
plots, except in two plots removed 14 unauthorized
officials from evicting the
where RCC buildings are structures and 48 poles
encroachers from the
stated to be existing, the with the assistance of Mutt land.
rest of the plots are revenue, Police,
In fact, the counsel
16
HACJ & MSMJ
WPs_28005 and 24048_2011
covered by zinc sheds and Panchayat Raj and appearing for the Mutt
it is stated that the Transco officials. The authorities represented
workers who are working remaining structures are that the rich people are
under him are put up in covered by stay. Further proceeding with the
those sheds and necessary action will be construction of duplex
obstructing the taken after receipt of final houses in the name of
authorities from evicting orders from the Hon'ble weaker sections and the
the encroachments. High Court. The District constructions are
Collector, however, stated continuing unabated.
It is reported that
copies of the lists are that encroachments are Therefore, the
already furnished to the springing up overnight. District Collector, Chittoor
Therefore, it is necessary
Tahsildar, Tirupati - is directed to issue
for the Mutt authorities to
Rural, the Joint Collector, instructions to the
Chittoor as well as even to post atleast 15 to 20 Revenue Divisional Officer
security guards round the
the Police Department. as well as to the Tahsildar
clock to prevent further
concerned, to see that
In view of the
encroachments.
above, the Joint Collector, immediate action is taken
In view of the not only to stop further
Chittoor as well as the
above, the Mutt constructions but also to
Tahsildar, Tirupati Rural
are directed to take authorities are directed to evict the encroachers as
consider the said well as to remove the
appropriate action for
suggestions by engaging illegal structures put up
removal of those
the security guards or by the encroachers by
encroachments in respect
of above listed lands in otherwise to make adopting due process of
appropriate application, law and submit a report to
Sy.No.13, 15 and 17/2, 3,
seeking for posting of this Institution within four
5 of Avilala village and
police picket or guards, so weeks, failing which, the
restore the land to the
Mutt expeditiously and as to prevent the District Collector, Chittoor
encroachments by making is to appear in person
submit a report to this
suitable application to the before this Institution.
Institution. The Panchayat
Secretary, Avilala is also police authorities. The Call on 9.9.2011.
directed not to issue any District Collector is also
further directed to take
house numbers to the
necessary action to see
encroachers of the mutt
land in Sy.Nos.13, 15 and that no illegal power
connections or the
17 of Avilala Revenue
Panchayat Numbers or
village. The report is
water connections are
directed to be submitted
by the next date of provided to the
encroachers in respect of
hearing.
the land in Sy.No.13, 15
List after two
and 17 of Avilala Village in
months. Call on
Tirupati Rural Mandal.
30.12.2010.
The Mutt authorities are
directed to submit further
17
HACJ & MSMJ
WPs_28005 and 24048_2011
status report by the next
date of hearing.
List after two
months. Call on
19.04.2011.
Since the petitioners in W.P.No.24048 of 2011 questioned the jurisdiction of the Lokayukta to pass impugned orders, it is necessary to advert to the orders passed by the Lokayukta and they are extracted herein.
Order dated 15.02.2011 Order dated 03.08.2011 A report dt.8.3.2011 is A report dt.13.7.2011 is submitted by the District Collector, submitted by the District Collector, Chittoor District, narrating the history Chittoor, stating that the writ of the case relating to the lands in petitions filed by the Weaker Sections' Sy.Nos.13, 15 and 17 of Avilala village, Mutt land Residents Association, were Tirupati Rural Mandal belonging to Sri dismissed. In the light of the Hathiramjee Mutt. In the report, it is dismissal of the writ petitions filed by stated that it is subject matter of the third parties, instead of taking number of proceedings either before action by the revenue authorities for the Hon'ble High Court in the writ eviction of the encroachers, if any, it petitions or before the Civil Courts in appears the District Collector, suits. The report further shows that Chittoor issued directions to the some of the structures were partly Revenue Divisional Officer, Tirupathi, removed and there was lot of to take legal opinion of the resistance from the occupants of the Government Pleader for implementing land leading to law and order problem the orders of this Institution. in Avilala village. It is stated that on There is absolutely no need to 5.2.2011, the Panchayat Secretary, seek any legal opinion, especially Avilala, Tirupati Rural Mandal has when there are no orders preventing removed 14 unauthorized structures the revenue officials from evicting the and 48 poles with the assistance of encroachers from the Mutt land.
revenue, Police, Panchayat Raj and In fact, the counsel appearing Transco officials. The remaining for the Mutt authorities represented structures are covered by stay. Further that the rich people are proceeding necessary action will be taken after with the construction of duplex receipt of final orders from the Hon'ble houses in the name of weaker High Court. The District Collector, sections and the constructions are however, stated that encroachments continuing unabated.
are springing up overnight. Therefore, it is necessary for the Mutt authorities Therefore, the District 18 HACJ & MSMJ WPs_28005 and 24048_2011 to post atleast 15 to 20 security guards Collector, Chittoor is directed to issue round the clock to prevent further instructions to the Revenue Divisional encroachments. Officer as well as to the Tahsildar concerned, to see that immediate In view of the above, the Mutt action is taken not only to stop authorities are directed to consider the further constructions but also to evict said suggestions by engaging the security guards or otherwise to make the encroachers as well as to remove the illegal structures put up by the appropriate application, seeking for encroachers by adopting due process posting of police picket or guards, so as to prevent the encroachments by of law and submit a report to this making suitable application to the Institution within four weeks, failing which, the District Collector, Chittoor police authorities. The District is to appear in person before this Collector is also further directed to take necessary action to see that no Institution. illegal power connections or the Call on 9.9.2011. Panchayat Numbers or water connections are provided to the encroachers in respect of the land in Sy.No.13, 15 and 17 of Avilala Village in Tirupati Rural Mandal. The Mutt authorities are directed to submit further status report by the next date of hearing.
List after two months. Call on 19.04.2011.
As seen from the orders extracted above, the Lokayukta issued directions to the official respondents to implement the directions issued by the Lokayukta from time to time. In fact, the complaint filed by respondent No.7 dated 06.11.2008 is only complaining inaction of police and revenue authorities Tirupati and verbal assurance have been received, but actual support has not been received on ground, till date. Local Police and Revenue authorities have been silent on this important work on some pretext or the other created confusion. While so, unauthorised persons are openly trespassing and raising structures on Mutt land without any respect for law and order. It is also alleged in the complaint that there are malafides on the part of 19 HACJ & MSMJ WPs_28005 and 24048_2011 the official respondents and they are not protecting the interest of the charitable institutions. Thus, the complaint at best discloses that no action was taken by the authorities concerned despite the request made by the respondent No.7. In view of the allegations made in the complaint, it is necessary to advert to the definition of "action" and "allegation".
According to Section 2 (a) of the Andhra Pradesh Lokayukta Act, 1983, 'action' means an administrative action taken by a public servant by way of decision, recommendation or finding or in any other manner, and includes any omission and commission and failure to act in connection with or arising out of such action; and all other expressions connecting action shall be construed accordingly.
The word 'allegation' is defined under Section 2 (b) of the Act, which reads thus:
Section 2 (b) 'allegation' in relation to a public servant means any affirmation that such public servant-
(i) has abused his position as such, to obtain any gain or favour to himself or to any other person, or to cause undue harm or hardship to any other person;
(ii) was actuated in the discharge of his functions as such public servant by improper or corrupt motive and thereby caused loss to the State or any member or section of the public; or
(iii) is guilty of corruption, or lack of integrity in his capacity as such public servant;
Keeping in mind the definition of "action" and "allegation", the allegations made in the complaint of respondent No.7 dated 06.11.2008 have to be considered and decide whether those allegations would fall within the definition of 'action' and 'allegation'.
It appears from the record that the respondent No.7 made request to the official respondents to provide necessary protection to 20 HACJ & MSMJ WPs_28005 and 24048_2011 the property to avoid unlawful encroachments, but no such representation/request, if any, made by the respondent No.7 to the official respondents is not placed on record. Even in the letter dated 06.11.2008 at "Ref:" nothing was mentioned except letter (blank) dated (blank). Therefore, the question of inaction will arise only when there is a representation from the respondent No.7 to provide necessary protection. If for any reason, no protection is provided by the police, the remedy open to them is to approach the competent Court and seek necessary protection through process of the Court.
In the last paragraph of the complaint lodged with the Lokayukta dated 06.11.2008, the specific allegation is made, which is extracted hereunder for better appreciation.
"Your kind intervention in the matter will reveal the role of land mafia and involvement of the authorities engaged in unlawful activities. Your kind initiative will help in safeguarding the property of this ancient religious and charitable institution located in Holy Town of Tirupati-Tirumala."
Though certain vague allegations were made against the Government Servants, the complaint is bereft of any details as to who are indulging in such illegal activities of trespass into the land and the official respondents in the present writ petitions are not the persons, who are allegedly indulging in such illegal activities of trespass. Therefore, the allegations made in the complaint do not fall prima facie within the definition of allegation under Section 2 (b) of the Act, since the official respondents are unconcerned with the alleged acts of indulging in such activities.
Therefore, the jurisdiction of Lokayukta is limited. Section 7 of the Act specifies the limits of jurisdiction. According to Section 7 of the Act, the Lokayukta may investigate any action which is taken by, or with the general or specific approval of, or at the behest of a 21 HACJ & MSMJ WPs_28005 and 24048_2011 Minister or a Secretary; or a Member of either House of the State Legislature; or a Mayor of the Municipal Corporation constituted by or under the relevant law for the time being in force; or any other public servant, belonging to such class or section of public servants, as may be notified by the Government in this behalf after consultation with the Lokayukta, in any case where a Complaint involving an allegation is made in respect of such action, or such action can be or could have been, in the opinion of the Lokayukta, the subject of an allegation. Therefore, any act done by public servant must be at the behest of persons specified in Lokayukta Act or persons themselves involving in the 'action' as defined under Section 2 (a) of the Act. But in the present facts of the acts, no allegation was made against any of the official respondents herein except making bald allegations that some officials are involving in such activities, that too there is specific limitation to entertain such complaint, but no such plea was raised before this Court.
If the action of the official respondents is questioned before the Lokayukta or Upalokayukta, the Lokayukta may entertain such complaint, but no allegation was made falling under the definition of 'allegation' as defined under Section 2 (b) of the Act to exercise jurisdiction by Lokayukta prima facie. When a complaint does not disclose any prima facie allegation against the official respondents, Lokayukta cannot take cognizance and enquire into.
The orders passed in these writ petitions are interim orders. According to Rule 22 of Andhra Pradesh Lokayukta and Upa- Lokayukta (Investigation) Rules, the Lokayukta may, by order not inconsistent with these rules, provide for matters for which no provision has been made in these rules, and may give such directions 22 HACJ & MSMJ WPs_28005 and 24048_2011 as may be necessary for giving effect to the provisions of the Act, the rules and such orders. But the directions issued by way of interim orders are not in consonance with the rules and such directions were issued even without issuing notice to the petitioners herein.
When the complaint is filed within time and not barred by limitation, still, it is the obligation of the Lokayukta to follow Rule 6 of the Rules, which reads as follows:
"If the Upa-Lokayukta or Lokayukta, after making necessary preliminary verification, proposes to conduct an investigation into the complaint, he shall inform the Complainant accordingly and forward a copy of the complaint together with a list of the witnesses whom the complainant proposes to examine and also the affidavits, if any, produced by the complainant to the public servant concerned and the competent authority concerned."
A bare look at Rule 6 of the Rules referred supra, it is evident that an opportunity has to be afforded to the public servant to take further action against him by conducting necessary investigation and strictly speaking, it is only insistence to the authorities to follow the principles of natural justice.
Chapter III of the Rules deals with Preliminary Verification and Investigation.
Rule 5 deals with Preliminary Verification. Sub-Rules (6) & (8) are relevant for deciding the real controversy and they are as follows:
(6) After consideration of the remarks, information and/or reports referred to in sub-rules (4) and (5) and after hearing the complainant if and when available and necessary and also the officers of the Section, the Lok Ayukta or Upa-Lok Ayukta, as the case may be, shall decide whether or not there are any sufficient grounds for ordering investigation, and if he finds that there are no sufficient grounds for conducting investigation, he shall pass on order rejecting the complaint:
Provided that if the Lok Ayukta or Upa-Lokayukta, as the case may be, is of the opinion after a consideration of the material referred to in sub-rules (4) and (5), that the injustice complained of or the grievance alleged can be remedied or redressed at the departmental level, he my close the complaint and send the relevant records to the concerned departmental authority with suitable directions and for appropriate action.23
HACJ & MSMJ WPs_28005 and 24048_2011 (8) Nothing prevents the Lok Ayukta or Upa-Lok Ayukta from closing a complaint at any stage and referring it to the concerned departmental authorities for appropriate action.
However, Sub-Rules (6) & (8) of Rule 5 permits issue of such direction after calling for the preliminary verification, though not willing to investigate further. This view is supported by the judgment of the Apex Court in "Rama Rao v. The Lokayukta" (referred supra), the Full Bench in "Government of Andhra Pradesh v. G. Kesavulu3" reiterated the same principle. Hence, the procedure followed by the Lokayukta is in accordance with Sub-Rules (6) & (8) of Rule 5. Therefore, on the ground of non-compliance of Rule 6, the order cannot be set at naught.
Learned counsel for the petitioners mainly relied on "Rama Rao v. The Lokayukta" (referred supra), but in the said judgment there was contract between the Director of Medical Education and the private person for supply of generators, but certain irregularities are found and direction was issued by the Lokayukta on complaint. The said decision cannot be applied to this case since the dispute between the petitioners and respondents is purely civil in nature and various matters are pending before the Courts i.e. Civil Suits and other proceedings. Moreover, as per the judgment of Apex Court in "Rama Rao v. The Lokayukta" (referred supra) the procedure followed by Lokayukta is not accordance with law and the impugned order is liable to be set aside on this ground alone.
To arrive at a conclusion that the allegation of negligence or inaction on the part of the public servant, there must be some prima facie material and any finding recorded in the absence of the official respondents or without notice to the official respondents is not 3 2003 (2) ALD page 1 (FB) 24 HACJ & MSMJ WPs_28005 and 24048_2011 binding. But such direction directly affects the interest of the petitioners, who are not parties before the Lokayukta, and if those orders are implemented by the authorities, it would cause prejudice to the petitioners and against their interest and defeat valuable rights of the petitioners herein. But at the same time, making a recommendation to the department to take appropriate action by competent authority is also without jurisdiction for the simple reason that the complaint itself did not disclose any action as defined under Section 2 (a) of the Act on the part of the official respondents. More curiously on account of order passed without jurisdiction, the petitioners will be driven from pillar to post and resorted to unnecessary litigation.
Even assuming for a moment, that the Lokayukta is competent to pass interim orders of this nature, which are impugned in these writ petitions, the order must be in consonance with Section 12 of the Act after compliance of Sections 10 and 11 of the Act. Even according to Rule 13 of Andhra Pradesh Lokayukta and Upa Lokayukta (Investigation) Rules, after completion of investigation in any allegation in respect of any action under the Act, the Lokayukta or Upa-Lokayukta, as the case may be, if satisfied that the allegation is substantiated either wholly or partly, shall by a report in writing communicate his findings and recommendations along with the relevant documents, materials or other evidence to the competent authority concerned. If after investigation of any allegation in respect of any action under the Act, the Lokayukta or Upa-Lokayukta, as the case may be, is satisfied that the allegation is not substantiated even partly, he shall inform the complainant and the public servant concerned and the competent authority concerned accordingly. Thus, it means any findings can be recorded only after completion of 25 HACJ & MSMJ WPs_28005 and 24048_2011 investigation and recommendations can be made only after completion of investigation along with the findings. But in the present case, no investigation is commenced as contemplated under Section 10 of the Act, which mandates that the Lokayukta or Upa-Lokayukta shall afford to the public servant concerned, an opportunity to offer his comments on such complaint or statement. But in the present case, except making a vague and bald allegation that the officials are also involved in the issue, but not the official respondents, who are Collector and Revenue Divisional Officer. In the absence of any allegation against the official respondents, without impleading the persons, who allegedly involved in such illegal activities of encroachments, the Lokayukta will not get jurisdiction. On the other hand, such findings can be recorded and recommendations can be made only after completion of investigation and sub-section (2) of Section 12 of the Act made it clear that the competent authority shall examine the report forwarded to it under sub-section (1) and without any further inquiry take action on the basis of the recommendation and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Upa-Lokayukta, the action taken or proposed to be taken on the basis of the report.
Thus, the Lokayukta is bound to act within the powers conferred on it and when there are no powers either under the Act or the Rules framed thereunder, the Lokayukta cannot exercise power to take coercive measures for enforcing the orders as held by this Court in "Superintending Engineer, Irrigation Circle, Visakhapatnam v. Institution of Lokayukta and Upa-Lokayukta, Hyderabad4"
Similarly, in "S.Jagadeswar v. The Lokayukta, A.P." (referred supra), the Court held that the order does not disclose as to whether 4 2001 (5) ALD 635 (DB) 26 HACJ & MSMJ WPs_28005 and 24048_2011 the complaint was in time and as to whether it was in respect of any specific action taken by the petitioner and what was the specific allegation against him. It does not appear from the order whether the petitioner had abused his office and position to obtain gain or favour to himself or to any other person or caused any undue hardship or harm to any other person or that he was actuated in the discharge of his function as a public servant by improper or corrupt motives and had thereby caused loss to the State or any member or section of the public or was guilty of corruption or lack of integrity in his capacity as such public servant. Such facts are to be found against the public servant by investigation which includes affording of an opportunity to him to lead evidence and to rebut it. No ex parte opinion can be formed by the Lokayukta without giving opportunity and without following the procedure to the public servant concerned. It appears from the counter-affidavit a stand to have been taken that the complaint received against tine petitioner was merely sent to the District Collector to take action and that since action had been taken, the matter was directed to be closed by order of 12.06.1996. Such a plea is not available since the order passed on 17.04.1996 was not merely a request to the District Collector to take action. Specific view was expressed in the order that the officer should be transferred to a distant far away place as it appeared to the Lokayukta that the petitioner had developed deep roots and vested interests in Shadnagar Mandal by working for too long a period in that area. Not only that, the District Collector was also directed to inform of the action taken by the date fixed viz., 12.06.1996. It can hardly be doubted that the order was intended as a direction to take action against the public servant concerned.27
HACJ & MSMJ WPs_28005 and 24048_2011 In view of the law declared by the Courts in various judgments referred above, the impugned orders passed by the Lokayukta are without jurisdiction and such orders cannot be passed at the verification stage and at best, the findings can be recorded and recommendations can be made only after completion of investigation under Section 12 of the Act read with Rule 13 of the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, but issuing such direction at the verification stage is an illegality, thereby such orders are liable to be set aside.
Both parties have raised various contentions with regard to consideration of report of Lokayukta in earlier writ petitions and appeals preferred against such order passed in writ petitions, but the same would not come in the way of this Court to pass any order in the present writ petitions for the simple reason that the report of Lokayukta referred in the writ petitions was not the subject matter of dispute in earlier writ petitions, but the Court incidentally referred and accepted the contentions of respondent No.7. When the legality of the report or directions issued by the Lokayukta were not under challenge in the writ petitions and appeal, the acceptance of such recommendations or directions of Lokayukta and consideration of the same in the writ petition are of no consequence. Since the directions issued by the Lokayukta are challenged in the present writ petitions, they have to be decided independently notwithstanding the findings recorded by the learned single Judge of this Court in writ petitions and affirmed by the Division Bench in writ appeals. Therefore, the order passed by the learned Single Judge and affirmed by the Division Bench in writ appeal, has no bearing on the issue involved in the present writ petitions since the petitioners challenged the power of 28 HACJ & MSMJ WPs_28005 and 24048_2011 Lokayukta to pass such orders, which would directly affect the rights of the petitioners.
On an overall consideration of material on record, it is clear that the orders passed by the Lokayukta are beyond the powers conferred on it and the same are liable to be set aside.
In the result, the writ petitions are allowed and the orders passed by the respondent No.1 dated 22.10.2010 and 15.02.2011 and the consequential order dated 03.08.2011 passed in Complaint No.1229/B1/2008 are hereby set side leaving it open to the Lokayukta to decide the complaint in accordance with law, within its jurisdiction.
Consequently, miscellaneous applications pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 10.07.2019 Ksp