HIGH COURT FOR THE STATE OF TELANGANA
WRIT PETITION No.619 OF 2008
Between:
Pillarisetti Harinath Babu
S/o. Late Seetha Rama Swamy,
Aged about 64 years, Occ: Agriculture,
R/o Bandarugudem, Manuguru Mandal,
Khammam District and another .. Petitioner
Vs.
The Special Deputy Collector (Tribal Welfare),
Bhadrachalam, Khammam District & 4 others. .. Respondents
DATE OF THE ORDER PRONOUNCED: 27.03.2023
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgment?
2. Whether the copies of judgment may be Yes
marked to Law Reporters/Journals
3. Whether his Lordship wish to Yes/No
see the fair copy of the judgment?
2
* HON'BLE SRI JUSTICE J. SREENIVAS RAO
+ WRIT PETITION No.619 OF 2008
% DATED 27th March, 2023
Pillarisetti Harinath Babu
S/o. Late Seetha Rama Swamy,
Aged about 64 years, Occ: Agriculture,
R/o Bandarugudem, Manuguru Mandal,
Khammam District and another .. Petitioner
Vs.
The Special Deputy Collector (Tribal Welfare),
Bhadrachalam, Khammam District & 4 others. .. Respondents
<Gist:
>Head Note:
! Counsel for the Petitioners : Sri K. Jagadeeshwar Reddy
^Counsel for Respondents : Learned Assistant Govt. Pleader for Tribal Welfare
Smt. Vasudha Nagaraj,
? CASES REFERRED:
1. 2000(2) ALT 155 (D.B.)
2. 2000(3) ALD 363 (D.B.)
3. 2009(2) ALD 651
4. 1994(2) An WR 216
5. 2002(4) ALT 669 (D.B.)
3
HON'BLE SRI JUSTICE J.SREENIVAS RAO
WRIT PETITION No.619 OF 2008
ORDER:
This writ petition is filed seeking writ of mandamus declaring the action of respondent No.1in initiating the proceedings under LTR Case No.50/2008/MGR,Dt 03.01.2008 and declare the same as illegal, arbitrary, without authority of law and unconstitutional.
2. Brief facts of the case:
2.1 The petitioners submits that he is the owner and possessor of land to an extent of Acs.1.31 guntas in Survey No.228 of Bandarugudem village, Manguguru Mandal, Khammam District and the same was purchased in the year 1961 from Bandaru Tirumali who is the Grandfather of respondent No.3. After purchase he had developed the said land by investing huge amounts, by digging well and by obtaining electricity connection and also raised mango Garden and constructed a house in part of the land and obtained house numbers bearing No.7-1-200 to 2004 from Gram Panchayat. He has also constructed another house and his name was 4 mutated in the revenue records and pattadar pass books were issued by revenue authorities.
2.2 The father of respondent No.3 namely Chinnabbai initiated proceedings under Andhra Pradesh Scheduled Areas land Transfer Regulations and Rules 1959 (hereinafter called for brevity as 'Regulations'), before respondent No.1 vide Case No.24/MGR/83 and respondent No.1 dropped the said proceedings by its order dated 02.02.1984 holding that there is no violation of Regulations and the said order has become final. The petitioner further submits that grandfather of respondent No.3 initiated proceedings under Regulations before respondent No.1 vide Case No.238/87/MGR and the same was dismissed on 04.12.1987 on the ground that the subject matter of case was already disposed of on 02.02.1984 and further action is dropped. He further submits that grandfather of respondent No.3 initiated proceedings once again before respondent No.1 in the year 1988 vide Case No.1132/88/MGR and the same was dismissed on 21.07.1992. He further submits that father of respondent No.3 categorically deposed before respondent No.1 in the year 1984 that his father along with him and his two brothers have sold the subject lands to petitioner No.1, twenty 5 four (24) years back.
2.3 The petitioners further submits that respondent No.1 once again initiated proceedings at the instance of respondent No.3 vide letter No.86/2002/MGR and issued notice directing the petitioners to attend the hearing on 03.10.2002 and petitioner No.2 appeared before respondent No.1 on the said date but respondent No.1 has not attended the office due to rastha rook and the case was adjourned to 24.10.2002. Subsequently, the petitioners engaged a counsel and filed counter before respondent No.1. Respondent No.1 without giving opportunity of hearing passed the order on 11.11.2002 directing the petitioners to vacate the land to an extent of Acs.0.10 guntas.
2.4 Aggrieved by the said order dated 11.11.2002, the petitioners filed appeal before Agent to Government/District Collector on 24.12.2002 along with stay petition. When the appellate authority failed to pass order in the stay application, the petitioners have approached this Court by filing W.P.No.357 of 2003 and the same was disposed on 08.01.2003 suspending the order dated 11.11.2002 passed by respondent No.1 till disposal of the appeal. Subsequently, the said appeal was 6 transferred to the Agent to Government at Khammam and renumbered as CMA No.1 of 2003and the same was allowed by setting aside the order dated 11.11.2002 and remitted the matter to respondent No.1 for fresh disposal by its order dated 21.04.2005.
2.5 Questioning the said order dated 21.04.2005, the petitioners filed W.P.No.11865 of 2005. This court allowed the writ petition and set aside the orders dated 21.04.2005. Aggrieved by the same respondent No.3 filed W.A.No.877 of 2006 and the same was dismissed on 07.09.2006 granting liberty to respondent No.3 to file a review petition. Thereafter, respondent No.3 filed Review W.P.M.P. No.27217 of 2006 and the same was dismissed on 21.12.2006. Against the same respondent No.3 filed W.A.No.612 of 2007 and the same was dismissed on 09.08.2007.
2.6 The petitioners further submits that at the instance of respondent No.3 once again respondent No.1 initiated LTR proceedings and issued impugned notice vide LTR Case No.50/2008/MGR dated 03.01.2008 directing the petitioners herein to show cause within 15 days as to why they should not be ejected and the property should not be restored to the 7 transferoror his/her heirs. Questioning the said notice the petitioners filed the present writ petition.
3. Respondent No.3 filed counter denying the allegations made by the petitioners contending that they are not the owners of the land to an extent of Acs.1.31 guntas in Survey No.228, Bandarugudem village, Manguguru Mandal, Khammam District and the property belongs to respondent No.3 and he acquired it from his ancestors. He further submits that his grandfather has not sold the land to the petitioner No.1 in the year 1961. The village pahani shows that the ownership is vested with his grandfather till 1995-96 and in the crucial year of 1962-63 and 1963-64, not only ownership but possession was also with his grandfather. Petitioner No.1 entered as purchaser with effect from 23.02.1966. Such purchase from a tribal by a non-tribal is hit by Regulations.
3.1 He further submits that in earlier LTR proceedings, his father and grandfather were not able to produce crucial evidence in support of their claim due to which the writ petitioners succeeded in those proceedings and the principle of res judicata is not applicable to the LTR proceedings. The earlier proceedings and common order passed in W.P.No.4431 8 of 2004 and 11865 of 2005 dated 06.06.2006 and order in W.A.No.612 of 2007 dated 09.08.2007 will not come in the way and respondent No.3 has rightly initiated the proceedings under Regulations vide LTR Case No.50/2008/MGR and issued notice dated 03.01.2008 directing the petitioners to submit explanation. The impugned notice issued by respondent No.1 is only a show cause notice and the writ petition filed by the petitioners is not maintainable under Article 226 of Constitution of India.
4 Respondent No.1 and respondent No.2 also filed counter contending that the subject land is situated in the agency area and the petitioners are non-tribals and they have not proved that the property was purchased prior to the Regulations came into effect nor produced any evidence in that regard. In the revenue records the names of father and grandfather of respondent No.3 were shown in the relevant pahani extracts from year 1961-62 to 2004-05. Due to non-availability of those documentsthe same were not produced in earlier proceedings and respondent No.3 has rightly initiated proceedings afresh basing on the fresh evidence and the same is permissible under law and further stated that the writ petition filed by the 9 petitioners against the show cause notice is not maintainable under law.
5. It appears from the records that during the pendency of the writ petition respondent No.3 died and respondent No.4 and 5 were brought on record as legal heirs of the deceased respondent No.3.
6. Heard Sri K. Jagadeeshwar Reddy, learned counsel for the petitioners, learned Assistant Government Pleader for tribal welfare appearing for respondent Nos.1 and 2 and Smt. Vasudha Nagaraj, learned counsel appearing for respondent Nos.4 and 5.
7. Learned counsel for the petitioners submits that at the instance of father of respondent No.3, respondent No.1 initiated proceedings vide Case No.24/83/MGR and the same was dismissed on 02.02.1984 holding that the subject land was sold to petitioner No.1 by father of respondent No.3, twenty four(24) years back. Thereafter, father of respondent No.3 initiated proceedings vide Case No.238/87/MGR and the same was dropped on 04.12.1987 on the ground of res judicata. Once again at the instance of respondent No.3, proceedings were 10 initiated by respondent No.1 and the same was also dropped on the ground of res judicata by its order dated 21.07.1992 vide Case No.1132/88/MGR.
7.1 Aggrieved by the said order, father of respondent No.3 filed appeal before Agent to Government at Khammam vide CMA No.1 of 2003. The appellate authority by setting aside the order dated 11.11.2002, allowed the appeal and remitted the matter back to respondent No.1 for fresh disposal by its order dated 21.04.2005.
7.2 He further submits that questioning the said order the petitioners filed W.P.No.11865 of 2005 before this Court. This Court was pleased to allow the writ petition along with W.P. No.4431 of 2004 and passed the common order on 06.06.2006. Aggrieved by the said order respondent No.3 filed W.A.No.877 of 2006 and the same was dismissed with a liberty to file review petition. Thereafter, respondent No.3 filed Review W.P.M.P.No.27217 of 2006 and the same was dismissed on 21.12.2006. Aggrieved by the same, respondent No.3 filed W.A.No.612 of 2007 and the same was dismissed on 09.08.2007 and the said order has become final and the same are binding upon all the parties concerned in respect of subject 11 land.
7.3 He vehemently contended that the impugned notice issued by respondent No.1 dated 03.01.2008 is contrary to the earlier orders passed by respondent No.1 as well as by this court and the same is liable to be declared as illegal and hit by the principles of res judicata. In support of his contentions he relied upon the following judgments:
i. Chintalapati Ramalinga Raju Vs. District Collector, Eluru, W.G.District and another1.
ii. Executive Engineer, I.B. Division, Nirmal and
others Vs. C. Shankar and others2
iii. V.R.koteswar Rao Vs. Government Of Andhra
Pradesh and others3 and
iv. Order in W.P.No.12564 of 2001 dated
09.09.2008.
8. Per contra Smt. Vasudha Nagaraj, learned counsel
appearing on behalf of respondent Nos.4 and 5 contended that the writ petition filed by the petitioners questioning the 1 2000(2) ALT 155 (D.B.) 2 2000(3) ALD 363 (D.B.) 3 2009(2) ALD 651 12 impugned show cause notice issued by respondent No.1 is not maintainable under law and the same is liable to be dismissed on the ground of maintainability alone.
8.1 She further contended that the subject property is situated in the scheduled tribe area and the petitioners are non-tribals, thus, they are not entitled to claim any rights over the property. She also submits that the specific contention of the petitioners that prior to the Regulations came into effect, they have purchased the property from the grandfather of the respondent No.3, the petitioners have failed to establish their claim by producing any iota of evidence.
8.2 She further contended that the names of father and grandfather of respondent No.3 were reflected in the revenue records, village pahani in ownership column and possessor column especially in the crucial years 1962-63 and 1963-64. The sale transactions are subsequent to the enactment and the same is clear contravention of the Regulations. The impugned proceedings initiated by respondent No.1 is not hit by principles of res judicata and the provisions of Regulations protects the rights of the tribals.
138.3 The appellate authority while disposing the appeal CMA No.1 of 2003 has given specific findings that father and grandfather of respondent No.3 pleaded that their names were recorded in the Pahani for the years 1959 to 2002 but they did not file any documentary evidences nor Xerox copies of Pahani in supporting their claim. The specific case of respondent No.3 is that due to unavailability of the records, his father and grandfather were unable to produce necessary evidence before the respondent No.1 in earlier proceedings which were held in favour of the petitioners. As per the provisions of Regulations, respondent No.1 has power to initiate proceedings basing on the fresh material available on record and respondent No.1 has rightly initiated the proceedings and issued the impugned notice dated 03.01.2008. The petitioners without submitting an explanation or counter to the said notice, straightaway approached this Court and filed the present writ petition, which is not maintainable under law.
8.4 In support of her contentions, thelearned counsel relied upon the following judgments:
(i) GaddamRaghavulu Vs. Agent to Government 14 (Dist. Collector), E.G. Dist, Kakinada and others4 and
(ii) Special Deputy Collector (Tribal Welfare), Rampachodavaram, East Godavari District and others Vs. DatlaVenkapathiRaju and others5
9. Learned Assistant Government Pleader for Tribal Welfare also contended that respondent No.1 has power to initiate the proceedings under the Regulations basing on the new material available. The impugned notice dated 03.01.2008 issued by respondent No.1 is only a show cause notice and the writ petition filed by the petitioners is not maintainable under law.
10. Having heard the learned counsel for respective parties and upon perusal of the record, the following points would arise for consideration:
1. Whether the writ petition filed by the petitioner questioning impugned show causenotice issued by respondent No.1 dated 03.01.2008 is maintainable under law?
2. Whether the impugned show cause notice dated 03.01.2008 is hit by principles of res judicata?
4 (1994) 2 An WR 216 5(2002) 4 ALT 669 (DB) 15
3. Whether the petitioners are entitled to any relief?
11. Point Nos.1 and 2:
11.1 It is undisputed fact that the land to an extent of Acs.1.31 guntas in Survey No.228 of Bandarugudem village, Manuguru Mandal, Bhadradri Kothagudem District is situated in scheduled area and at the instance of father of respondent No.3, respondent No.1 initiated the proceedings while exercising the powers conferred under Regulations vide CaseNo.24/83/MGR and the same was dismissed by its order dated 02.02.1984. Thereafter, at the instance of grandfather of respondent No.3, respondent No.1 initiated proceedings in respect of land to an extent of Acs.1.31 guntas vide Case No.238/87/MGR and the same was dropped by its order dated 04.12.1987 on the ground that earlier proceedings vide Case No.24/83/MGR dated 02.02.1984 were already dismissed. Thereafter, father of respondent No.3 once again initiated proceedings before respondent No.1 vide case No.1132/88/MGR and the said case was also dropped on the ground of res judicata by its order dated 21.07.1992. 16 Thereafter, at the instance of respondent No.3, respondent No.1 initiated proceedings vide LTR Case No.86/2002/MGR against the petitioners and others and respondent No.1 passed the ejectment orders by its order dated 11.11.2002. Questioning the said order the petitioners filed appeal in CMA No.97 of 2003 and the same was allowed and remanded to primary authority for fresh enquiry. Questioning the said remand order the petitioners filed W.P.No.11865 of 2005 before this Court and the same was allowed on 06.06.2006 and questioning the said order respondent No.3 filed W.A.No.877 of 2006 and the same was dismissed with a liberty to respondent No.3 herein to seek review of the order passed by learned Single Judge. Thereafter, respondent No.3 filed review petition vide W.P.M.P.No.27217 of 2006 in W.P.No.11865 of 2005 and the same was dismissed on 21.12.2006. Aggrieved by the said order respondent No.3 filed W.A.No.612 of 2007 and the same was dismissed on 09.08.2007 on the ground that respondent No.3 filed writ appeal aggrieved by the order passed in review petition only and respondent No.3 has not filed any appeal aggrieved by the order dated 06.06.2006 and dismissed the appeal by observing that:
17
"We are in complete agreement with the learned Single Judge that order dated 06.06.2006 does not suffer from any error apparent warranting its review. If the appellant felt aggrieved by order dated 06.06.2006, he should have challenged the same by filing appeal along with the order passed in review petition. By omitting to do so, he has disentitled himself from seeking a declaration that order dated 06.06.2006 suffers from a patent legal infirmity requiring interference under Clause 15 of Letters Patent."In the result, the appeal is dismissed."
11.2 It appears from the record that respondent No.3 filed petition under Section 3(1) of Regulations as amended by regulation of 1970 before respondent No.1 and the same was numbered as LTR Case No.50/2008/MGR wherein respondent No.3 mentioned all the earlier proceedings including dismissal of the Writ Appeal No.612 of 2007, stating that in earlier proceedings before respondent No.1 and before this Court the respondent No.3 could not succeed only on the ground that he failed to produce the substantial evidence, though specific contention of the father and grandfather of the respondent No.3 is that they have not alienated the subject property in favour of the petitioner's father on the other hand, their names were continued in the village pahani in pattadar Column and occupants column, upto year 1993-94 particularly crucial year 1961-62 and 1962-63. He further stated that he secured sufficient and valid documentary evidence to show that the 18 possession and enjoyment of scheduled land by the non tribal petitioners is in contravention of the Regulations which was not covered in earlier proceedings.
11.3 Respondent No.3 has not suppressed any factual aspects including earlier proceedings of respondent No.1 and earlier orders passed by this Court in W.P.No.11865 of 2005 dated 06.06.2006 and the orders passed in W.A.No.612 of 2007 dated 09.08.2007. The petitioners filed the present writ petition questioning the impugned show cause notice issued by respondent No.1 in LTR Case No.50/2008/MGR on the ground of principles of res judicata.
11.4 Respondent No.3 specifically pleaded in his petition LTR Case No.50/2008/MGR that he secured new material to show and establish that the petitioners are in possession of subject land in scheduled area which is in contravention of Regulations. In GaddamRaghavulu case (supra) and in Special Deputy Collector (Tribal Welfare) case (supra) this Court specifically held that:
"The principles of res judicata or a principle analogous thereto shall be applied with caution and circumspection in dealing with a case arising under the Regulation meant for the protection of the 19 tribes. If the proceedings were dropped earlier for the reason that the 3rdrespondent-tribal could not produce sufficient evidence, it does not preclude a subsequent enquiry. Hence, I am not inclined to accept the contention of the learned counsel in this regard."
11.5 The specific contention of respondent No.3 is that in the earlier proceedings respondent No.1 dismissed and dropped the proceedings because the father and grandfather of respondent No.3 did not produce sufficient evidence and father of respondent No.3 has not given any statement before respondent No.1. The judgments which are relied upon by the learned counsel for the petitioners are not applicable to the facts and circumstances of the case.
11.6 The contention of the petitioners that entertaining petition filed by respondent No.3 and issuance of the impugned show cause notice dated 03.01.2008 by respondent No.1 is hit by principles of res judicata is concerned, the division bench and learned Single Judge of this Court in the above judgments specifically held that the principles of resjudicata or a principle analogous thereto shall be applied with caution and circumspection in dealing with a case arising under the Regulation meant for the protection of the tribes. Hence, the writ petition filed by the petitioners questioning the impugned 20 show cause notice dated 03.01.2008 issued by respondent No.1 is not maintainable under law. Insofar as the plea of res judicata is concerned, the same has to be adjudicated by the competent Court i.e., respondent No.1. Thus, point Nos.1 and 2 are answered accordingly.
12. Point No.3 12.1 It is already stated supra that the petitioners have filed the writ petition without submitting explanation to the impugned show cause notice dated 03.01.2008 issued by respondent No.1.
12.2 In view of the same, liberty is granted to the petitioners to submit explanation by raising all the grounds which are raised in the present writ petition within a period of six (6) weeks from the date of receipt of a copy of this order and on such explanation, respondent No.1 shall pass appropriate orders, in accordance with law, by giving opportunity of hearing to the parties concerned. Till such time, the respondents are directed not to take any coercive steps against the subject property. Point No.3 is answered accordingly. 12.3 Accordingly, the writ petition is disposed of. No 21 costs.
As a sequel thereto, miscellaneous applications, if any, pending in this writ petition shall stand closed.
_____________________________ JUSTICE J.SREENIVAS RAO 27thMarch, 2023 PSW