Pallem Rayalingu, vs The State Of Telangana,

Telangana High Court

Pallem Rayalingu, vs The State Of Telangana, on 3 May, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

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        THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION Nos.5519 and 5520 of 2019

COMMON ORDER:

W.P.No.5519 of 2019 is filed challenging the action of 4th respondent in passing the order dated 16.02.2019 in case No.TWA1/147/2015, thereby omitting to consider the case in TWA2/16/2019 as per TS/APSALT Regulation 1/1959 as without jurisdiction, as the issue of tenancy rights claimed by the 6th and 7th respondents in respect of property of an extent of Ac.5-22 guntas in Survey No.136/190 of Mandamarri village and mandal, Mancherial (formerly Adilabad) District, the ownership certificate under Section 38E in Form No-II issued in favour of Sri Alluri (Kota) Pochaiah, sought for cancellation under representation dated 19.06.2015 and 24.08.2015 is pending before the respondent Nos. 2 and 3, detaching the case in TW2/16/2019 is contrary to the provisions of AP(TA) Tenancy and Agricultural lands Act, 1950 as wholly illegal, arbitrary, and violative of Articles 19(1)(g), 300A of Constitution of India, with a view to demolish / dispossess the petitioners from their respective houses consequently to direct the 3rd respondent District Collector to take action forthwith on the tenancy issue as per the representation dated 24.08.2015 of the petitioners as per law, and until then no coercive steps against the house property of the petitioners.

2. Similarly, W.P.No.5520 of 2019 is filed to declare the order dated 16.02.2019 of 2nd respondent made in case No.TWA1/147/2015 only 2 (served on 13.03.2019) by detaching the connected matter in No.TWA2/16/2019 purported to have been passed under the provisions of TS/APSALT Regulation 1/1959, for restoration of land to an extent of Ac.0-30 guntas situated in Survey No.136/1/1 of Mandamarri village and mandal, Mancherial (formerly Adilabad) District contrary to the provisions of AP(TA) Tenancy and Agricultural lands act, 1950, as illegal and arbitrary, and violative of Articles 19(1)(g), 300A of the Constitution of India, with a view to demolish the petrol outlet and house and/or dispossess the petitioner from the aforementioned property, and consequently direct the 3rd respondent refraining to proceed with further in all respects in pursuance of the order dated 16.02.2019 until the other connected matter in No.TWA2/16/2019 is disposed of.

3. As both the writ petitions are connected, they are analogously heard and are being disposed of by this Common Order. For the sake of discussion, the recitals in W.P.No.5519 of 2019 are being taken.

4. Brief facts of the case, as per the averments in WP No.5519 of 2019, are that the property in Survey No.136 to an extent of Ac.13-19 guntas situated at Mandamarri village and mandal, Adilabad District held to be as patta standing in the name of Smt.B. Butchamma, wife of Late Venkata Narsinga Rao was subjected to protected tenancy rights and the ownership under the provisions of AP(TA) Agricultural lands Act, 1950. The tenants who are in actual cultivation and have found to be eligible for grant of Ownership Certificate under Section 38-E, 3 A.P.(T.A) Tenancy Agricultural Lands Act, 1950. Accordingly Ownership Certificates under Section 38E was granted in favour of various persons over different extents of lands and they are entitled to acquire Ownership Certificate under the provisions of the Act, 1950 as they are found to be in personal cultivation for six years period during 1938 to 1954, and evidencing the same Kasra Pahani for the year 1954-55, these persons names were recorded as tenants / occupants. The then Tahsildar had granted Ownership Certificate under Section 38E after thorough examination of preliminary report as well as final enquiry report and their names were also entered into the Statutory Tenancy Register (PT Register). It is stated that in none of the records, there was the name of Kota (Alluri) China Posham and the extent available and the certificates granted are equal and the issue was concluded. While so, during the year 2009 for the first time the 5th respondent family started claiming interest over the property and describing them to be the successors of one Mr. Kota Pochaiah @ Alluri Pochaiah, which is absolutely false. The Local Body intended to construct a library in vacant land at Survey No.142 of the village, and it was objected and they have even filed a civil suit in OS No.4 of 2009 on the file of Court of Junior Civil Judge, Mancherial for declaration of title and recovery of possession of property. In the said suit, the District Collector and Tahsildar, Mandamarri, filed counter stating that the alleged PT certificate by Alluri Pochaiah was cancelled as he did not cultivate the same. There is no vacant land available and it is covered by houses and 4 purchased by various persons. The suit was dismissed by a decree dated 18.11.2014. It is the case of petitioner that while the suit was pending for consideration before the Civil Court, the 6th and 7th respondents have approached the 5th respondent Tahsildar on 19.01.2013 seeking to implement the Section 38E certificate said to be granted to Kota @ Alluri Pochaiah who was said to be father in law of 6th respondent. The application was rejected by a Memo No.B/437/2013 by Tahsildar stating that the land was in occupation of houses, petrol outlet, Church, etc., and the suit is pending for adjudication. However, subsequently, apparently on another application dated 16.05.2013, the Tahsildar granted the same request without notice to the petitioner and on the strength of this sanction of implementation of PT rights, the respondents 6 and 7 started claiming rights over the property. Thereafter, notices were received from 3rd respondent during the month of October 2015 exercising the powers purported to have been undertaken under the provisions of TS/APSALT Regulation, 1959, Regulation 1/70 in case Nos.TWA1/147/2015 to the subject Survey Number and Survey Number 135 in TWA1/150/2015. Apparently, this was the subject matter before this Court in a writ petition and writ appeal which were disposed of directing the 2nd respondent to resolve the same after hearing the issue. Before the 2nd respondent, petitioner No.12 appeared as party respondent and contested, and ultimately the matter was remitted to the 4th respondent for consideration by an order dated 31.10.2018. After the matter was remand to 4th respondent, a 5 notice dated 29.12.2018 was issued to the 11th petitioner directing him to appear for enquiry scheduled to be on 05.01.2019 in case in TWA1/147/2015. On receipt of it the 12th petitioner have appeared on 05.01.2019 and filed relevant documents and in the meantime respondents 6 and 7 have proclaimed that the entire property in Survey No.136, and orders will be issued by 4th respondent and on coming to know of this, the petitioners have filed another petition before the 4th respondent in TWA2/16/2019 duly enclosing entire documents relating to tenancy and sales made by other PT holders including the ground reality of our constructions of houses there on with permission of local body. It is the case of petitioner that several applications were made to concerned authorities for consideration of Tenancy issue as the certificate implemented by the Tahsildar in favour of respondents 6 and 7 are false and fabricated as per original PT register. There is no such PT and the total extent of PT land is only Ac.13-19 guntas and on seven persons names the Ownership Certificates were issued and were sold to various persons. All these facts were borne on record and evidenced as per the report dated 16.01.2018 of Tahsildar, Mandamarri, submitted to 2nd respondent during the enquiry held in TAW1/147/2015. It is the case of the petitioner the dispute raised in the complaint of 6th respondent is purely Tenancy, Land Encroachment which are governed by separate statutes. It is the further case of petitioner that the 4th respondent without consideration of these aspects unilaterally decided one case in TAW1/147/2015 against the 12th petitioner and discarded 6 the petitioners case. It is the case of petitioner that there are discrepancy with regard to the claim of respondents 6 and 7 at their convenience, wherever there is land available. Originally, in the civil suit, it was claimed with specific boundaries and in the application dated 19.01.2013 and 16.05.2013 in both they have claimed their property from eastern side of Survey No.136 with the names of persons said to be encroached their property. However, later they have converted into multiple dimension completely changed their version and claimed my property which is situated on western side of Survey No.136. Further the family members of Original PT holders have also joined in the enquiry and filed a petition in TAW2/16/2019, the 4th respondent have issued notices to all of them and all of them appeared and filed documents evidencing their possession and occupation and the respondents 6 and 7 are not entitled and have nothing to do with as the subject property claimed through the family of Alluri is not found in original PT register, however, the 4th respondent did not consider the said aspect. It is the case of petitioner that the subject property in Survey No.136 is Ac.13-19 guntas and the land claimed by 4th and 5th respondent is not available on ground, and this action of 2nd respondent is illegal and violative of Article 300A of Constitution of India, in addition to my right to carry the business guaranteed under Article 19(1)(g) inasmuch as the very origin of claim under PT is seriously in dispute, and the dispute raised by the persons is not a Tribe and it is a dispute between Non-tribe, and the rights under Protected Tenancy 7 issue is exclusive domain of Tenancy Court and Revenue Authority and Agency authorities cannot have any jurisdiction to deal or amicably resolve the same and to exercise the powers to pass orders. Nonetheless the 4th respondent did not consider and unilaterally pass an order for my ejection from the property to an extent of Ac.0-30 guntas discarding the petitioner objections. Therefore, the entire exercise undertaken by 2nd respondent including the passing of order dated 16.02.2019 suffers from lack of jurisdiction to recognize the tenancy rights over and above the extent which is not available on ground without authority of law.

5. It is the further case of the petitioners that the order passed by the 5th respondent-Tahsildar on 19.01.2013 rejecting the application of respondents 6 and 7 and subsequently passing another order in same dispute by reviewing earlier order is illegal and lacks jurisdiction, and the 4th respondent ought to have taken this into consideration. It is also the case of petitioners that their application is coming up with other appeal and the 4th respondent herein has stated that the order passed is not covering all parties and that once both the cases are clubbed together and notices are issued, the 4th respondent ought to have adjudicated the claim of petitioners, and hence the orders passed by the 4th respondent not legal and valid. It is the grievance of the petitioners that they have constructed houses on the subject property, and the efforts of respondents 4 and 5 in trying to evict the petitioners taking advantage of situation that the petitioners case in TAW2/16/2019 was 8 not disposed of; and hence the action of 4th respondent suffer from legal impediments.

6. Heard Sri B. Shankar, learned counsel for petitioners; and the learned Government Pleader for Social Welfare.

7. Learned Government Pleader would contend that the submit that against the impugned orders of 4th respondent, there is an efficacious alternative remedy and this Court may not exercise its jurisdiction under Article 226 of the Constitution of India when factual aspects are involved for determination of rights under Agency laws.

8. Per contra, learned counsel for the petitioner relied on Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 1, Harbanslal Sahnia v. Indian Oil Corporation Ltd. 2, Deputy Collector v. Venkata Ramanaiah 3, Ashok v. Baba Rao 4.

9. In Venkata Ramanaiah (3 supra), it was held as under:

"27. On a conjoint reading of Section 3(1)(a) and Section 3(2)(a), it becomes clear that the Section seeks to hit the transfers effected after the Section came into force and possession only under such invalid transfers is sought to be dealt with for the purpose of eviction of transferees and restoration of possession to transfers, as the case may be, under Section 3(2)(a) of the Regulation. Consequently, the alternative submission of learned senior counsel for the authorities that even though transfer of immovable property in the Agency tracts may not be hit by Section 3(1)(a) still possession under such transfers 1 (1998) 8 SCC 1 2 (2003) 2 SCC 107 3 (1995) 6 SCC 545 4 (2002 (5) ALD 824 9 could be restored to the original transferor under Section 3(2)(a), cannot be countenanced. Section 3(2)(a) is a corollary to Section 3(1)(a) and cannot have any independent role to play. Nor can it cover any area which is not encompassed by the sweep of Section 3(1)(a).

10. In Whirlpool Corporation (1 supra), it was held that the High Court would not normally exercise its jurisdiction when there is alternative efficacious remedy, however it is not a bar when fundamental rights or where there has been violation of principles of natural justice or proceedings are without jurisdiction or the vires of Act are challenged.

11. In the instant case, it is pertinent to note that the dispute revolves around scheduled tracts covered by the Regulations and the transactions entered into between tribal transferors and non-tribal transferees or even for that matter between non-tribal transferors and non-tribal transferees, and their validity under Section 3(1) of the Regulation, 1970. It is not the case of petitioner that the 4th respondent has not followed the due process in passing the impugned order or considering the material on record, whereas it is the grievance of the petitioner that during the pendency of case, respondents 5 and 6 are claiming rights over the land.

12. In South Indian Bank Ltd. v. Naveen Mathew Philip 5, it was held as under:

5

Civil Appeal Nos.2861 and 2862 of 2023 dated 17.04.2023 10 "16. When a statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by a writ Court. A litigant cannot avoid the noncompliance of approaching the Tribunal which requires the prescription of fees and use the constitutional remedy as an alternative.

18. While doing so, we are conscious of the fact that the powers conferred under Article 226 of the Constitution of India are rather wide but are required to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature has provided for a specific mechanism for appropriate redressal.

43. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc., and the particular legislation contains a detailed mechanism for redressal of his grievance.

55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act, and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."

13. In reply to para No.15 of the writ affidavit in WP No.5519 of 2019, it is stated in the counter filed by respondent No.4 that it is false and incorrect to say that the petitioner have no other effective alternative remedy in fact there is an appeal provision under Section 3(a)(ii) of 11 APSALTR Act, 1959, and the petitioner without availing effective alternative remedy directly approached this Court.

14. In reply to paragraph No.8 of the writ affidavit in WP No.5520 of 2019, it is stated in the counter filed on behalf of respondents 4 and 5, that the entire allegations are false and denied. It is incorrect to say that the dispute is within the exclusive domain of the Tenancy Court. That the subject land is situated within the agency track the property if any can only be sold to the tribals and not to the non tribals and such sales are absolutely null and void under Section 3(1)(a) of APSALTR Act, 1959. Further in reply to paragraph No.9, it is stated in the counter that the order dated 16.02.2019 of the respondent No.2 in File No.TWA1/147/2015 is already enforced on 11.03.2019 by the Tahsildar Mandamarri and possession was taken over by the 4th respondent and the Tahsildar also submitted compliance report to the 2nd respondent vide letter dated 11.03.2019. In reply to paragraph No.10, it is stated that it is false and incorrect to say that the petitioner have no other effective alternative remedy in fact there is an appeal provision under Section 3(a)(ii) of APSALTR Act, 1959, and that the petitioner without availing effective already directly approached this Court and misguided the Court to grant interim order. As per Section 3(3)(a) of APSALTR 1959 Act the orders shall prescribe time limit for making an Appeal. That, orders does not contain the Appeal time. In the orders it is not stated that opportunity is given to party to engage an Advocate, file the 12 counter, lead evidence and advance arguments. The said case commenced on 29.12.2018, wherein notices were ordered to appear on 05.01.2019 and from 05.01.2019, it is posted to 16.02.2019, only two dates on the 16.02.2019 orders were pronounced). Further, the Court of Special Deputy Collector, Utnoor, has pecuniary and territorial jurisdiction to entertain the appeal since the disputed property situated in Mandamarri village falls within the jurisdiction of Scheduled Area as such as per the Apex Court Judgment passed in (2012) 11 SCALE 312.

15. Further, under the Telangana Scheduled Areas Land Transfer Regulations, 1959:

"if the decree or order was passed by any other officer to the Agency Divisional Officer or Agent as may be prescribed,

(b) The appellate authority may entertain an appeal on sufficient causes being shown after the expiry of the time limit prescribed therein."

16. In Harbanslal Sahnia v. Indian Oil Corporation Ltd. 6, it is observed as under:

"In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies:

(i) Where the writ petition seeks enforcement of any of the fundamental rights;

(ii) where there is failure of principles of natural justice; or 6 (2003) 2 SCC 107 13

(iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act 10 is challenged."

17. In the given set of facts, in the present case, when there is efficacious alternative remedy of appeal under Section 3(a)(ii) of APSALTR Act, 1959, and when there are disputed questions of fact involved, this Court is not inclined to exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and bypass the statutory remedy prescribed under the Regulations.

18. Therefore, in view of the alternative remedy of appeal under Section 3(a)(ii) of the APSALTR Act, 1959, these writ petitions are disposed of with liberty to the petitioners to avail the alternative remedies as available under law by keeping it open to the parties to raise all the contentions sought to be raised in this writ petition. The interim order dated 18.03.2019 which was extended from time to time stands vacated. No costs. Miscellaneous petitions, if any pending, shall stand closed.

_____________________________ Justice Nagesh Bheemapaka 03rd May, 2024 ksm