Telangana High Court
Smt.K.Santhakamani Hyd 19 Others vs Govt Of A.P Hyd 8 Others on 2 June, 2021
Bench: M.S.Ramachandra Rao, T.Vinod Kumar
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
Writ Petition No.35061 of 1997, Writ Petition No.14771 of 2003,
Writ Petition No.9262 of 2006, Writ Petition No.13424 of 2006,
Writ Petition No.7438 of 2007, Writ Petition No.27532 of 2008,
Writ Petition No.3532 of 2009,
Interlocutory Application No.2 of 2019 in Writ Petition No.11026 of 2009
and
Writ Petition No.11026 of 2009
Writ Petition No.35061 of 1997
Between:
The Kalyan Nagar Cooperative Housing Society Ltd.,
T.A.218, 8-3-167/D/194(A), Venture-I,
Kalyan Nagar, Hyderabad - 500 038,
Rep. by its Secretary.
...Petitioner
And
The State of Telangana,
rep. by its Secretary, Revenue Department,
Secretariat, Hyderabad, and others
...Respondents
Writ Petition No.14771 of 2003
Between:
B. Venugopal Rao, S/o.B.R. Rao,
Aged about : 75 years, Occ : Retired Officer,
R/o.179 'A' Class CIB Quarters,
Mallepally, Hyderabad, and others
...Petitioners
And
The Principal Secretary, Revenue Department,
Secretariat, Hyderabad, and others
...Respondents
::2:: MSR,J & TVK,J
wp_35061_1997&batch
Writ Petition No.9262 of 2006
Between:
Y. Venkateswara Rao, S/o.Lakshmaiah,
Aged : 76 years, Retd. Central Government Employee,
R/o.55 Sundernagar, Hyderabad and others
...Petitioners
And
The State of Telangana,
rep. by its Secretary, Department of Municipal Administration
& Urban Development,
Secretariat, Hyderabad, and others
...Respondents
Writ Petition No.13424 of 2006
Between:
M.R. Seethamahalakshmi, W/o.M.V.K. Varma,
Aged about 68 years, R/o.6-3-244/4,
Premnagar, Hyderabad and others
...Petitioners
And
The State of Telangana,
rep. by its Secretary, Department of Municipal Administration
and Urban Development,
Secretariat, Hyderabad, and others
...Respondents
Writ Petition No.7438 of 2007
Between:
M. Krishna Reddy, S/o.Late Venkata Reddy,
Aged about : 71 years,
R/o. Plot No.15, Srinivasa Nagar,
Medical Society, Besides VVN Colony,
Kukatpally, Hyderabad - 72, and others
...Petitioners
And
The State of Telangana,
rep. by its Secretary, Department of Municipal Administration
and Urban Development,
Secretariat, Hyderabad, and others
...Respondents
::3:: MSR,J & TVK,J
wp_35061_1997&batch
Writ Petition No.27532 of 2008
Between:
Smt. K. Samanthakamani,
W/o. Late K. Satyanarayana,
Aged : 68 years, House-wife,
R/o.Plot No.40,
Flat No.G1, Priya Colony, Gudimalkapur,
Mehidipatnam, Hyderabad and others
...Petitioners
And
The State of Telangana,
rep. by its Secretary, Department of Municipal Administration
and Urban Development,
Secretariat, Hyderabad, and others
...Respondents
Writ Petition No.3532 of 2009
Between:
Raja Vasireddy Rajyalakshmi Devi,
W/o.RVLN Prasad, aged : 68 years,
House-wife, R/o.5-87-3, 2nd lane,
Lakshmipuram, Guntur District and others
...Petitioners
And
The State of Telangana,
rep. by its Secretary, Department of Municipal Administration
and Urban Development,
Secretariat, Hyderabad, and others
...Respondents
Writ Petition No.11026 of 2009
Between:
The Kalyannagar Co-operative Housing Society Ltd.,
H.No.10-2-289/120/49/29 & 30, P.S. Nagar,
Masab Tank, Hyderabad, rep. by its Secretary,
P. Satyanarayana Reddy, S/o. Late Bapi Reddy.
...Petitioner
And
The State of Telangana,
rep. by its Secretary, Department of Municipal Administration
and Urban Development,
Secretariat, Hyderabad, and others
...Respondents
::4:: MSR,J & TVK,J
wp_35061_1997&batch
Date of Judgment pronounced on : 02.06.2021
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes
to Law Reporters/Journals:
3. Whether His Lordships wishes to see the fair copy : Yes/No
Of the Judgment?
::5:: MSR,J & TVK,J
wp_35061_1997&batch
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
Writ Petition No.35061 of 1997, Writ Petition No.14771 of 2003,
Writ Petition No.9262 of 2006, Writ Petition No.13424 of 2006,
Writ Petition No.7438 of 2007, Writ Petition No.27532 of 2008,
Writ Petition No.3532 of 2009,
Interlocutory Application No.2 of 2019 in Writ Petition No.11026 of 2009
and
Writ Petition No.11026 of 2009
% 02.06.2021
# The Kalyan Nagar Cooperative Housing Society Ltd.,
T.A.218, 8-3-167/D/194(A), Venture-I,
Kalyan Nagar, Hyderabad - 500 038,
Rep. by its Secretary.
...Petitioner
And
$ The State of Telangana,
rep. by its Secretary, Revenue Department,
Secretariat, Hyderabad, and others
...Respondents
< GIST:
> HEAD NOTE:
!Counsel for the Petitioners : C.V. Mohan Reddy, learned Senior Counsel
appearing on behalf of Sri Ramakrishna
Pativada, Hamsa Devineni, Sri R.G.
Shashidhar Singh, Sri C.Hanumantha Rao,
Sri Srinivasa Rao Bodduluri, Sri
P.Prabhakar Rao, and Sri Mohd.Rafiq,
counsel for petitioners
::6:: MSR,J & TVK,J
wp_35061_1997&batch
^Counsel for respondents : Sri Harendra Prasad, Special
Government Pleader attached to the Office
of the Advocate General for the State of
Telangana, Sri Pasham Krishna Reddy,
Counsel for the Greater Hyderabad
Municipal Corporation (the changed name
of the Municipal Corporation of
Hyderabad) and Sri Y.Rama Rao,
Standing Counsel for the HMDA (the
successor of the HUDA)
? Cases referred
1. 2006 (4) ALD 190
2. 1993(1) APLJ 253
3. MANU/AP/0629/2006 = 2006 (6) ALD 176 (DB)
4. (2013) 6 ALD 27 (DB)
5. AIR 1970 AP 318 (FB)
6. (2001) 6 ALT 209 (DB)
7. AIR 1967 SC 1269 at para 9
8. (2012) 12 SCC 675, at page 680
9. (1980) 2 SCC 471
10. (2015) 3 SCC 605, at page 621
11. Devinder Singh v. State of Punjab ... (2008) 1 SCC 728 PARA 43
12. AIR 1969 SC 267
13. (2019) 13 SCC 185, at page 202
14. (1985) 3 SCC 1
15. (2016) 11 SCC 378
16. (2011) 12 SCC 375
17. State of Punjab v. Ramjilal ... (1970) 3 SCC 602;
18. Express Newspapers (P) Ltd v. Union of India ... (1986) 1 SCC 133
19. MANU/AP/0722/2006 (DB)
20. (2019) 12 SCC 275
21. (1994) 1 SCC 44
22. (2020) 2 SCC 569
23. (2013) 1 SCC 353
24. (2011) 10 SCC 404
25. (2007) 11 SCC 447, at page 451
26. AIR 1961 SC 1353
27. (1996) 4 SCC 127
28. (1995) 4 SCC 683
29. (2010) 1 SCC 512
30. (1974) 3 SCC 554
31. AIR 1972 KERALA 103
32. 1979 (4) SCC 176
33. 1985 (3) SCC 737
34. (1984) 4 SCC 251
35. (2002) 1 ALD 790 (DB)
36. (2018) 3 ALT 660(DB)
37. (2018) 6 SCC 215, at page 281
38. (2011) 8 SCC 161
39. (1994) 5 SCC 380, at page 390
40. (2020) 1 SCC 1 para 1239 and 1243 pg.
41. (1988) 3 SCC 449, at page 455
42. (2003) 4 SCC 21
43. (2011) 1 SCC 484
::7:: MSR,J & TVK,J
wp_35061_1997&batch
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
Writ Petition No.35061 of 1997;
Writ Petition No.14771 of 2003;
Writ Petition No.9262 of 2006;
Writ Petition No.13424 of 2006;
Writ Petition No.7438 of 2007;
Writ Petition No.27532 of 2008;
Writ Petition No.3532 of 2009;
Interlocutory Application No.2 of 2019 in Writ Petition No.11026 of 2009
and
Writ Petition No.11026 of 2009
COMMON ORDER: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)
All these Writ petitions relate to the same property and common
questions of law and fact arise for consideration and so they are being
disposed off in this common order.
The cases have a chequered history starting from 1963 till date.
The Background Facts
1963-1978
2. A Housing Society by name Kalyan Nagar Co-operative
Housing Society Ltd (for short 'the Society') was registered as a
Co-operative Society under the A.P. (Telangana Area) Co-operative
::8:: MSR,J & TVK,J
wp_35061_1997&batch
Societies Act, 1952 on 10.12.1963. It has 350 members from
lower/middle class families.
3. On 5.11.1964, the said Society purchased from Smt. C. Rajya
Lakshmi Devi and another under a Regd.Sale deed Doc.No.3143 of
1964, an extent of Ac.34.00 gts and 4472 sq.yds in Sy.No.128/1 and
128/10, Yousuguda Village, Hyderabad West.
4. Under another regd. Sale deed Doc.No.2074 of 1964
dt.16.11.1964, it also purchased from A. Ramaswamy and another
extent of Ac.3.00 gts and 2489 sq.yds in Sy.No.128/1 and part of
Sy.NO.128/10 of Yousufguda Village.
5. On 7.3.1969, C.Rajya Lakshmi Devi and another executed a
regd. Rectification deed dt.7.3.1969 bearing Doc.No.751/1969
correcting the marking and sketch of the lands registered under the
Sale deed dt.5.1.1964 by furnishing a revised plan without any change
in the area or boundaries.
6. Thus about Acs.38.00 and 2121 sq.yds was purchased by the
Society in Sy.No.128/1 and 128/10 of Yousufguda Village.
7. On 1.3.1978, the Director of Town Planning and the Municipal
Corporation of Hyderabad issued an approved layout to the Society
comprising 287 house plots in an area of Ac.38.00 through
L.P.No.14/74.
8. However sale deeds could not be executed in favor of the
members/allottees in view of the prohibition under the Urban Land
::9:: MSR,J & TVK,J
wp_35061_1997&batch
(Ceiling and Regulation) Act, 1976 and the Society was awaiting
exemption from the provisions of the said Act for the sale of the land
to it's members.
1978-1990
9. In the meantime, the land started getting encroached, according
to the Society with the active encouragement and help from a local
politician, politician and a Member of Legislative Assembly
(for short 'MLA') by name P.Janardhan Reddy, who later also
became a Minister in the State cabinet of the State of Andhra Pradesh.
10. On 14.8.1978, the Society filed O.S.No.2616/1978 before the II
Asst. Judge, City Civil Court, Hyderabad against 4 persons for
permanent injunction restraining them from interfering with the
possession of the Society of Acs.38.00 and 2121 sq.yds. The said
Court decreed the suit on 30.11.1981.
11. According to the Society, between 1986 and 1988, the
encroachers / land grabbers did not vacate, but continued in the
occupation of land with political support and slowly extended their
occupation of the land with the help of the local MLA P.Janardhan
Reddy. Many more huts were raised and in all there were 503 land
grabbers who occupied the entire land belonging to the Society.
12. On 15.2.1988, the then State Govt. of Andhra Pradesh issued
G.O.Ms.No.114, Revenue (UC.I) Department dt.15.2.1988, in
exercise of powers conferred on it under Sec.34 of the Urban Land
::10:: MSR,J & TVK,J
wp_35061_1997&batch
(Ceiling and Regulation) Act, 1976, deleting the lands purchased by
the Society from the excess land holdings of it's vendor
Smt. C.Rajyalakshmi Devi (Sl.No.5 and 8 of the said G.O).
13. On 10.8.1988, the Society filed LGC No.2 of 1988 against 500
encroachers / land grabbers under the A.P. Land Grabbing
(Prohibition) Act, 1982 before the Special Court constituted under the
said Act, and all 503 persons who were illegally in possession of the
land of Ac.38.00 and 2121 sq.yds., were impleaded therein.
14. Cognizance of the case was taken by the Special Court
constituted under the said Act under proviso to Sec.8(1-A) and notices
were issued to the respondents. A notification was also issued under
the proviso to sub-Section (6) of Sec.8 of the said Act and published
in the Andhra Pradesh Gazette Part-II (Extraordinary) dt.22.9.1988
calling for objections, if any, on or before 26.9.1988. No objections
were filed by any of the respondents in the LGC, in spite of service of
notices, and they were then set ex parte.
15. In the evidence adduced before the Special Court, the Society's
witnesses deposed about the active encouragement given to the land
grabbers by P.Janardhan Reddy, the then MLA, the assault committed
by the land grabbers on the watchman of the Society, and the promise
by the MLA to sort out the issue and get the encroachers to vacate the
land by getting for them alternative land. The witnesses also deposed
that the said MLA later became a Minister, but he did nothing to sort
::11:: MSR,J & TVK,J
wp_35061_1997&batch
out the issue and get the land grabbers evicted in spite of the office
bearers of the Society meeting him several times.
16. This evidence of involvement and active encouragement given
by the local MLA P.Janardhan Reddy, who also later became a
Minister, to the land grabbers was accepted by the Special Court and
it declared in it's judgment dt.15.9.1989 in L.G.C. No.2 of 1988 that
the Society is the owner of the subject land, that all the respondents
are land grabbers/ encroachers and are liable for eviction; the
respondents were given 3 months time to remove the structures
erected by them in the land and vacate it; and in default, the Society
was granted liberty to get them removed and take vacant possession of
the land.
17. Though I.A.No.424 of 1989 was filed by some of the
respondents to set aside the ex parte decree dt.15.9.1989 in LGC.No.2
of 1988, it was dismissed with costs on 15.1.1990.
18. No Writ Petition was filed challenging the Order dt.15.9.1989
in LGC No.2 of 1988 or the order dt.4.1.1990 in IA No.424 of 1989 in
LGC 2 of 1988 and these orders attained finality.
19. The adage that the difficulties of the decree holder start after he
secures a decree in his favor from the Civil Court came true as can be
seen from the subsequent events.
::12:: MSR,J & TVK,J
wp_35061_1997&batch
20. Under Rule 15 of the Rules framed under the A.P. Land
Grabbing (Prohibition) Act, 1982, the Revenue Divisional Officer is
the statutory authority to execute the orders of the Special Court.
21. It is not in dispute that the Revenue Divisional Officer and Sub-
Divisional Magistrate, Hyderabad Division, Hyderabad District issued
notice No.1/1248/90 dt.12.3.1990 under Rule 15(2) in Form-V with a
direction to the Dy.Tahsildar, (Land Grabbing), Golconda Mandal to
take possession from the land grabbers of the land of Ac.38, 2121
sq.yds in Sy.No.128/1 and 128/10 of Yousufguda village on behalf of
the Govt. and hand it over immediately to the Society.
22. The Society alleges that the eviction process to evict the
judgment debtors / land grabbers was stalled due to political pressure
wielded by P.Janardhan Reddy, the then Local MLA and Minister,
and in spite of repeated requests of the Society's office bearers, the
Revenue divisional Officer did nothing.
23. In the mean time, the land grabbers formed Karmikanagar
Weaker Sections Welfare Association, Yousufguda with the MLA
P.Janardhan Reddy as Chief Patron.
24. A letter dt.19.5.1990 was written by the said Association to the
Society to sell the subject land to it @ Rs.9 per sq.yd by way of
compromise. The offer was raised to Rs.25/- per sq.yd by another
subsequent letter dt.8.6.1990.
::13:: MSR,J & TVK,J
wp_35061_1997&batch
25. An agreement dt.31.1.1991 was also entered into by the Society
with the Association agreeing to sell the land for Rs.25/- per sq.yd,
with a specific condition (Clause 2) that the said amount would be
collected from individual members of the Association within 90 days
from that day and paid to the Society, and in default, the agreement
would stand cancelled.
26. Since no payment was made by the Association to the Society
of the agreed amount thereafter within the said 2 months or even till
date, the agreement stood cancelled as per clause 2 thereof.
1991-1996
The notification under Sec. 3(1) of the A.P. Slum Improvement (Acquisition
of Lands) Act, 1956
27. On 12.12.1991, the Spl.Dy.Collector, L.A Section, UCD, MCH
issued a Notification in Form No.1 under Sec.3(1) of the A.P. Slum
Improvement (Acquisition of Lands) Act, 1956 stating that the
Commissioner of the Municipal Corporation of Hyderabad, the
delegate of the State Government (under G.O.Ms.No.45 Housing
dt.8.3.1963), is satisfied that an area of Ac.28-7 acres specified in the
schedule to the said notification, is a source of danger to public
health, safety or convenience of it's neighborhood by reason of the
area being hill slope, unsanitary or squalid.
28. Strangely in the schedule to the notification describing the land
notified as 'slum', there is no mention of the Sy.Nos or Town
Sy.No.(T.S.No.) or the village name or the name of the land owner. It
::14:: MSR,J & TVK,J
wp_35061_1997&batch
is stated that it is located at Karmikanagar Slum, MCH-8, Block-3.
Even the number of families affected is left 'blank'.
29. The boundaries mentioned in the notification as set out below
also appear 'vague':
North ... Houses
South ... Rahmatnagar
East ... Open Land
West ... Houses
30. From this notification, it is very difficult to conclude that it
relates to land which is part of Acs.38.00 and 2121 sq.yds in
Sy.No.128/1 and 128/10 of Yousufguda village purchased by the
Society.
The preliminary notification under Subsection (2) of Sec. 3 of the A.P. Slum
Improvement (Acquisition of Lands) Act, 1956
31. The Commissioner of the Municipal Corporation of Hyderabad,
the delegate of the State Government, next issued vide notification
No.107 dt.20.3.1992 notice in Form No.II proposing acquisition of the
area notified as slum area in the notification issued on 12.12.1991
under Sub-Section (2) of Section 3 of the A.P. Slum Improvement
(Acquisition of Lands) Act, 1956, and addressed it to
Smt.Rajya Lakshmi Devi, the vendor of the Society, styling her as a
'person interested' in the land.
32. This notification dt.20.3.1992 also does not mention the
Sy.No.s of the land or the village. It only mentions the slum area as
"Karmikanagar".
::15:: MSR,J & TVK,J
wp_35061_1997&batch
33. For the first time now in this notification dt.20.3.1992, the
Town Survey Numbers T.S.No.9/1 and 10 are indicated. These TS
No.s were not mentioned in the notification dt.12.12.1991 issued
under Section 3(1) of the Act notifying the area as 'slum area'.
34. More importantly, while proviso to Sub-section (2) of section 3
requires the State Government to call upon the owner of, or any other
person who, in the opinion of the Government, is interested in such
land to show cause why it should not be acquired, the Society which
had become the owner of the notified land by 1964, is not issued any
notice to show cause by the Commissioner, GHMC, though it is not
only the 'owner' but also 'person interested'.
35. The Society contends that the State Government was fully
aware that Smt.C.Rajya Lakshmi Devi was no longer the owner of the
land notified as slum area and proposed to be acquired, and that the
Society was the owner thereof, and deliberately the notice under
proviso to sub-Section (2) to Section 3 of the A.P.Slum Improvement
(Acquisition of Land) Act,1956 was not issued to the Society.
36. In fact it is the plea of the Society that Smt.C.Rajya Lakshmi
Devi, the noticee mentioned in the notification dt.20.3.1992 was not
even alive by 20.3.1992 when the notice under sub-Section (2) of
Section 3 was issued to her.
::16:: MSR,J & TVK,J
wp_35061_1997&batch
The final notification under sub-section (2) of section 3 of the A.P.Slum
Improvement ( Acquisition of Land) Act, 1956
37. On 30.6.1992 in A.P.Gazette No.234, the Commissioner,
Municipal Corporation of Hyderabad issued final notification under
sub-Section (2) of Section 3 of the A.P.Slum Improvement
(Acquisition of Lands) Act, 1956 stating that notices to the owners or
persons interested were issued by him to show cause why the land
should not be acquired with a view to undertaking the execution of
works designed to improve or clean the area in the interest of public
health, safety or convenience of it's neighborhood, that objections
were received from the owners thereof or the persons interested in the
said lands declared as a slum area, that the same were considered
and rejected; and so, in exercise of powers conferred by sub-section
(2) of Section 3 of the A.P. Slum Improvement (Acquisition of Land)
Act, 1956, he has decided to acquire the said lands declared as "slum
area' in pursuance of Section 3 (1) of the said Act.
38. In this notification dated 30.6.1992, for the first time, the
Sy.Nos.128/1 and 128/10 and the name of the village as Yousufguda
village were mentioned, which had not been mentioned in the
notification dt.12.12.1991 issued under Sec.3(1) of the said Act or in
the preliminary notification /notice dt.20.3.1992 issued to owners
under sub-Section (2) of Section 3 of the Act.
39. We may point out that though the provisions of Section 6 of the
A.P. Slum Improvement (Acquisition of Land) Act, 1956 contemplate
the payment of compensation to the land owner whose land is
::17:: MSR,J & TVK,J
wp_35061_1997&batch
declared as a "slum area' and acquired for development, no steps were
taken to determine or pay any amount to the Society for the notified
land by the State Government or it's officials till date.
40. Unaware of these events the Society gave a representation
dt.2.7.1992 to the District Collector, Hyderabad seeking restoration of
it's land by evicting the persons declared as land grabbers by the
Special Court under the A.P. Land Grabbing (Prohibition) Act, 1982
in LGC No.2 of 1988 by judgment dt.15.9.1989.
41. On coming to know of the actions taken by the State
Government through the Commissioner, Municipal Corporation of
Hyderabad taken under the A.P. Slum Improvement (Acquisition of
Land) Act, 1956, the Society gave a representation dt.20.8.1992 to the
Commissioner, Municipal Corporation of Hyderabad objecting to both
the preliminary notification declaring it's land as a 'slum area' and
also for it's acquisition raising several contentions and requested him
not to proceed further and act contrary to the judgment dt.15.9.1989 of
the Special Court under the A.P.Land Grabbing (Prohibition) Act,
1982 in LGC No.2 of 1988. He was also requested to cancel the
notifications by issuing another notification immediately.
42. Similar representation dt.20.8.1992 was also given to the
District Collector, Hyderabad and to the Asst. Commissioner of Police
on 5.5.1993.
::18:: MSR,J & TVK,J
wp_35061_1997&batch
43. A representation was also made to P.Janardhan Reddy, the then
Minister for Labour, Employment and Housing, Govt. of A.P. on
15.5.1993 stating that in November, 1992, in a meeting chaired by
him, the State had desired to retain the notified land and promised to
consider giving alternative land of equal value free of cost to the
Society and to maintain status quo till then, that contrary to said
understanding, the Municipal Corporation had started to develop the
area and provided necessary amenities to the land grabbers squatting
over the land, that the District Collector had already submitted a
proposal to give alternative land to the Society, and requesting the
Minister to give suitable directions for allotment of alternative land to
them.
44. Nothing was done to solve the grievance of the Society or it's
members.
45. In 1997, certain newspaper reports appeared in Telugu Daily
News Paper "Eenadu" that the State's Chief Minister had ordered
grant of house site pattas to all the residents/land grabbers in
Karmikanagar.
The first Writ Petition - W.P.No.35061 of 1997
1997-2010
46. On coming to know of this, on 27.12.1997, the Society filed
W.P.No.35061 of 1997 before this Court seeking a direction to the
State of Andhra Pradesh, the District Collector, Hyderabad, the
::19:: MSR,J & TVK,J
wp_35061_1997&batch
Revenue Divisional officer, Hyderabad, the Mandal Revenue Officer,
Khairatabad Mandal and the Municipal Corporation of Hyderabad
rep. by it's Commissioner to desist from granting pattas to the land
grabbers in occupation of land in Sy.No.128/1 and 128/10 of
Yousufguda village without resorting to acquisition under the Land
Acquisition Act,1894 and also to direct the respondents to deliver
possession of the said land to it.
47. The Society contended that when the A.P. Legislature had
passed the A.P.Land Grabbing (Prohibition) Act, 1982 to evict land
grabbers, and the forum created under the said Act had decreed on
15.9.1989, LGC No.2 of 1988 filed by the Society and directed the
eviction of the land grabbers, and the said order had attained finality,
the respondents' proposal to grant pattas to such land grabbers and
regularize their illegal possession is illegal and arbitrary, and the
State cannot grant such relief to 'land grabbers' instead of evicting
them and upholding the 'Rule of Law'.
48. The Society also filed WPMP.No.41254 of 1997 in the said
W.P. to direct the respondents in the W.P.No.35061 of 1997 not to
grant pattas to any persons in illegal possession of land in
Sy.No.128/1 and 128/10 of Yousufguda village pending disposal of
the said W.P.
49. On 1.1.1998, a learned single Judge of the A.P. High Court
granted the said interim order.
::20:: MSR,J & TVK,J
wp_35061_1997&batch
The counter affidavits filed by the respondents
50. In the counter affidavit filed in the said Writ Petition by the
State of Andhra Pradesh, the District Collector, Hyderabad, the
Revenue Divisional officer, Hyderabad, the Mandal Revenue Officer,
Khairatabad Mandal ( respondents 1 to 4 therein), the State relied on
it's notifications dt.12.12.1991,20.3.1992 and 30.6.1992 issued under
the A.P.Slum Improvement (Acquisition of Land) Act, 1956.
According to them, the Karmikanagar Slum situated in Municipal
Ward 8, Block 3, Circle No.V was an identified and very old slum by
an Officers Committee in 1986 and it is at Sl.No.634 of the slums list;
and once the land is declared as a slum and acquired it vests in the
State free from all encumbrances; and it is authorized to regularize the
occupations of the poor slum dwellers by issuing such pattas. But no
such report of the Officers' Committee was filed by the respondents
along with the counter affidavit filed in this Writ Petition.
51. While admitting that the Society has filed O.S.No.2618 of 1978
and also LGC No.2 of 1988 before the Special Court constituted under
the A.P. Land Grabbing (Prohibition) Act, 1982, the respondents took
the plea that the State is not a party to the said LGC. It contended that
the Society should have questioned the notifications issued under the
A.P. Slum Improvement (Acquisition of Land) Act, 1956, and it
cannot question the assignment of land by the State to the poor slum
dwellers; and notwithstanding the decision of the Special Court, the
State is not precluded from declaring such land as a slum. According
::21:: MSR,J & TVK,J
wp_35061_1997&batch
to them, the Society can at best claim only compensation under the
Act.
52. The Commissioner of the Municipal Corporation of Hyderabad
raised similar contentions in a separate counter filed in January,1998
and pleaded that the Writ Petition was filed by the Society 5 years
after the notifications were issued under the A.P.Slum Improvement
(Acquisition of Land) Act, 1956 and on account of laches and delay, it
ought to be rejected.
53. But the fact remains that the State did not grant any house site
pattas to any of the land grabbers in view of the interim order
dt.1.1.1998 in WPMP.No.41254 of 1997 in WP.No.35061 of 1997.
54. On 14.10.2004, the Society submitted a representation to the
Chief Minister for allotment of alternative land through the Principal
Secretary, Municipal Administration and Urban Development.
55. Rejoinder is filed by the Society in March, 2005 stating that the
notifications cover 230 approved house plots of the Society; that no
part of the land owned by it is a 'slum', but it is a well developed area
for which lay out was approved in 1966; and for extraneous reasons
the respondents had ignored the judgment dt.15.9.1989 in LGC No.2
of 1988 and allowed the land grabbers to continue in the land without
evicting them through the Revenue Divisional Officer, under Rule 15
of the Rules framed under the said Act.
::22:: MSR,J & TVK,J
wp_35061_1997&batch
They contended that the respondents, with a pre-meditated plan,
to render the orders of the Special Court nugatory, deliberately issued
notice to Smt. Rajya Lakshmi Devi, though she had sold the land to
the Society by 1964 and had expired in 1980s; and they deliberately
issued the notice under sub-Section (2) of Section 3 of the A.P.Slum
Improvement (Acquisition of Lands) Act, 1956 to a dead person.
It was also pointed out that the Municipal Corporation of
Hyderabad was aware of the Society's ownership of the subject land
since it had collected Rs.33,487/- on 16-5-1966 towards lay out
approval fee and approved the tentative lay out; and subsequently the
said Corporation had converted the approved house plots into 'a very
old slum' to satisfy certain persons with vested interests.
It was also stated that Karmikanagar was located on
Government land, and the Society's land was adjacent to it, that
Kalyannangar Colony (of the Society) and Karmikanagar are two
different colonies with different extents and boundaries, and the land
grabbers took advantage of it and included the Society's land in
Karmikanagar slum and got it notified as a 'slum'.
They contended that the Writ Petition was about taking of
possession of Acs.38.00 and 2121 sq.yds of land belonging to Society
while the respondents are justifying their action in notifying Ac.28-07
gts as a slum.
::23:: MSR,J & TVK,J
wp_35061_1997&batch
Reliance is also placed on the exemption granted from the
operation of the Urban Land (Ceiling and regulation) Act, 1976 to the
Society by the State Government vide G.O.Ms.No.114 rev (UCI)
Department dt.15.2.1988 and it is contended that the acquisition of
Ac.28.07 gts. is under a false pretext, amounting to sheer abuse of
power and amounts to playing fraud on a statue.
It is also stated that the respondents intended to keep the
Society in dark about the Land acquisition and so did not reply to the
letters dt.14-3-1990, 7-4-1992 and 2-7-1992 about eviction of the land
grabbers and delivery of land to the Society.
It is contended that the acquisition was made fraudulently
without notice to the Society, that it is bad in law, and is against the
principles of natural justice, and on those grounds it is liable to be set
aside.
The Society denied that the Writ Petition was hit by laches and
contended that the Society waited for 5 years for the respondents to
keep their promise and when it came to know about the proposal to
grant pattas, it filed the Writ petition.
In a separate rejoinder filed on 9.7.2008 to the Counter of the
Commissioner of the Municipal Corporation of Hyderabad, it is stated
that the Society had issued a legal notice on 20.8.1992 when it came
to know about the proposal to issue pattas to the land grabbers and
asked for delivery of possession of it's land, but the respondents made
::24:: MSR,J & TVK,J
wp_35061_1997&batch
the committee members of the Society to believe that they acquired
Ac.28-07 gts under the A.P.Slum Improvement (Acquisition of Land)
Act, 1956 with Rahmatnagar as it's southern boundary from Rajya
Laksmi Devi, and the land of the Society was having different
boundaries and was not affected by the acquisition.
56. On 27.1.2011, the Advocate General appeared for the
respondents and sought time for 3 weeks; and on 1.9.2014, he
informed the Court that the issue whether the Society will be allotted
alternative land is under consideration of the Government and sought
time of 4 weeks.
57. WPMP.No.17435 of 2015 was filed by the Society, after the
composite State of Andhra Pradesh was divided into new State of
Telangana and the residuary State of Andhra Pradesh under the A.P.
Reorganisation Act, 2014, to substitute "the State of Telangana" in
place of "Government of Andhra Pradesh". The said application was
ordered on 1.5.2015.
58. Though several orders were passed by this Court from time to
time directing the respondents to explore the possibility of giving
alternative land to the Society, nothing came of it, and ultimately the
State bluntly refused to grant anything to the Society.
59. It also never paid any compensation under the A.P.Slum
Improvement (Acquisition of Land) Act, 1956 to the Society nor did it
give alternative land to the Society.
::25:: MSR,J & TVK,J
wp_35061_1997&batch
60. More importantly, to avoid any dispute about the location of the
Ac.28-07 gts notified for acquisition under the A.P.Slum
Improvement (Acquisition of Land) Act, 1956, pursuant to the orders
dt.4.10.2008 passed by the High Court in W.P.No.35061 of 1997 and
batch, the Government of Andhra Pradesh constituted a Committee
for the purpose of examining and ascertaining the identity of the land
declared as a slum, and whether it is the land of the Society situated
at Sy.No.128/1 and 128/10 of Yousufguda village; and whether the
total extent of Ac28-07 gts notified as slum is in fact in the land
belonging o the Society.
61. The members of the Committee were (i) Spl.Commissioner &
Prl. Secretary to Government, O/o Chief Commissioner of land
Administration, Andhra Pradesh, Hyderabad, (ii) the Collector,
Hyderabad District, (iii) Additional Commissioner, Municipal
Corporation of Hyderabad, (iv) Deputy Director, Survey, Settlement
and Land records, Hyderabad and (v) Joint Collector, Hyderabad
District.
62. A report dt.19.6.2009 was submitted by the said Committee
stating that (a) the entire area of Ac.38.00 which includes the extent of
Ac.28-07 gts notified by slum is covered by structures, (b) the area of
Ac.28-07 gts notified as slum is a part of Ac.38.00 claimed by the
Society as it's property and (c) the entire area of Ac.38.00 is covered
by dwelling units.
::26:: MSR,J & TVK,J
wp_35061_1997&batch
The second W.P.No.14771 of 2003 filed by members of the Society
63. On 15.7.2003, 116 members of the Society filed W.P.No.14771
of 2003 seeking a Writ of Mandamus to declare that the initiation of
the proceedings under the A.P.Slum Improvement (Acquisition of
Lands) Act, 1956 and issuance of the Gazette notification No.107/92
dt.20.3.1992 and No.2344 dt.30.6.1992 by the Commissioner of the
Municipal Corporation of Hyderabad to an extent of Ac.28.07 gts out
of Acs.38.00 and 2121 sq.yds and not handing over possession of
Acs.9.5gts to the members of the Society by the State of Andhra
Pradesh and other respondents is illegal, arbitrary and mala fide in
view of the finality of the decision dt.15.9.1989 of the Special Court
under the A.P.Land Grabbing (Prohibition) Act, 1982 and to set aside
the same.
64. The respondents are the Chief Secretary, Govt of A.P., the
Principal Secretary, Revenue department, Hyderabad, the Principal
secretary to Government, Housing (Co-operation) Department,
Hyderabad, The Commissioner, Municipal Corporation of Hyderabad,
the District Collector, Hyderabad, the Revenue Divisional Officer,
Hyderabad, the Mandal Revenue Officer, Khairatabad, The
Commissioner of Police, Hyderabad City. The respondent no.9 is the
Society.
65. The petitioners contended that the Society collected advance for
the plots to be allotted to it's members apart from land registration
charges and newspaper advertisements, obtained tentative layout
::27:: MSR,J & TVK,J
wp_35061_1997&batch
approval from the Municipal Corporation of Hyderabad on 5.12.1966,
that final layout approval application was submitted on 11.1.1979, and
some plots were registered in ventures I and III at Yousufguda in
name of the members, but no plots were registered to the petitioners
who were allotted plots in Venture II falling in the Ac.28-7 gts though
land cost was also collected from them in 1964 itself. That in 1986,
Sri P.Janardhan Reddy managed things and appears to have got
included the area in a list of old slums existing in the twin cities
knowingly that the land belongs to 287 members of the Society and
the inhabitants had occupied the land illegally contrary to court
judgments such as LGC No.2 of 1988 decided by the Special court on
15.9.1989.
66. It is contended that the respondents, who were aware of the
change of ownership of the land to the Society, chose to issue notice
published in the AP Gazette Part I dt.20..3.192 with a malafide
intention to Smt.Rajya Lakshmi Devi who had already sold the land
on 5.11.1964 to the Society and though they were aware of the
judgment in LGC 2 of 1988. It is also contended that Smt.Rajya
Lakshmi Devi was dead by that time and no notice was given to the
real owner, the Society, and principles of natural justice were
violated.
67. They stated that initiation of proceedings under the A.P.Slum
Improvement (Acquisition of Land) Act, 1956 was arbitrary and
illegal, that there was no acquisition under the said Act of balance of
::28:: MSR,J & TVK,J
wp_35061_1997&batch
Ac.9.00 (Acs.38.00 and 2121 sq.yds - Ac.28-07 gts) and the
respondents be directed to deliver possession of this Acs.9.00 also.
68. The Writ as against the Chief Secretary of the State of A.P (the
respondent no.1) was dismissed on 24.7.2003.
69. An additional affidavit was filed on 2.7.2004 to direct the
Prl.Secretary, Revenue Department of Govt. of A.P and the District
Collector, Hyderabad to allot Ac.28-7 gts of Govt.land of the same
cost in lieu of the land acquired under the A.P.Slum Improvement
(Acquisition of Land) Act, 1956.
The counter affidavit filed by the District Collector, Hyderabad (respondent
no.5)
70. The District Collector, Hyderabad filed a counter affidavit in
this case reiterating that the Karmikanagar slum situated in Municipal
Ward-8, Block-3 in MCH Circle-V had been identified by the
Officers' Committee in 1986, and on recommendations of the
Committee the said area was included in the notification issued under
the A.P.Slum Improvement (Acquisition of Land) Act, 1956, that after
issuing of notifications under Sec.3(1) and Sec.3(2) of the said Act,
the land of Ac.28-7 gts vests in the State Government free of all
encumbrances. The plea of laches in filing the W.P.No.35061 of 1997
is reiterated; and it is contended that the respondents have not vacated
the land which is under occupation of slum dwellers with permanent
structures for about 50 years.
::29:: MSR,J & TVK,J
wp_35061_1997&batch
71. No material to show that the structures were in existence for 50
years is filed.
72. It is denied that there is any illegality or irregularity committed
by the respondents or that any individual benefit is involved in the
action of the respondents.
73. It is also stated by the District Collector, that action was being
taken to acquire the remaining extent of Ac.9-5 gts of land also under
the A.P.Slum Improvement (Acquisition of Land) Act, 1956 as the
entire land is covered with structures.
74. But no such notification is produced by the respondents
notifying the balance of Ac.9-5 gts of land of the Society under any
law till date.
75. It is also stated that there is no vacant Government Land free
from encroachment available in Hyderabad District jurisdiction to
allot alternative land to the petitioners.
The Rejoinder filed by the petitioners to the counter affidavit filed by the
District Collector
76. In the rejoinder filed by the petitioners in August, 2014, they
denied that the area notified under the A.P.Slum Improvement
(Acquisition of Land) Act, 1956 was low lying, squalid and was a
source of danger to public health and safety and it is stated that the
claim of the respondents to the contrary is not based on facts.
::30:: MSR,J & TVK,J
wp_35061_1997&batch
77. It is also pointed out that the State Government through
G.O.Ms.No.272 Rev dt.24.2.2009 had allotted alternative land on
exchange basis to land owners of Unnikota slum in Ranga Reddy
District; and through G.O.Ms.No.236 dt.21-2-2009 allotted 6000
sq.yds of alternative land to the legal heirs of one Ramesh kumar in
Sy.No.28 of Khajaguda, Ranga Reddy District in lieu of the land they
had lost in Road No.2, Banjara Hills, Hyderabad. They also referred
to the letter dt.20.10.2010 addressed by the Society to the respondents
identifying Government lands in Ranga Reddy District, and contended
that the plea of the State that there is difficulty in allotting alternative
Govt. land raised by the District Collector is without any basis.
78. The petitioners also filed WPMP.No.3824 of 2015 in
WP.No.14771 of 2003 to substitute the "State of Telangana" in the
place of "the Govt. of Andhra Pradesh" in the cause title and the said
application was rejected on 21.4.2015 on the ground that the Writ was
already dismissed against the respondent no.1 and the words "Govt. of
A.P" were not there in the description of the Respondent no.s 2 and 3.
79. However since the State of Andhra Pradesh is the authority
which issued the impugned notifications through it's delegate the
Commissioner, Municipal Corporation of Hyderabad, and the said
Official is impleaded as Respondent no.4 in the Writ Petition, even if
the State of Telangana is not a party to this Writ Petition, and the
since the Office of Advocate General, State of Telangana has
defended the case on behalf of all official respondents, it hardly makes
::31:: MSR,J & TVK,J
wp_35061_1997&batch
any difference for the continuance of the Writ petition and for this
Court to decide it.
80. We suo motu add the State of Telangana as a party to this Writ
Petition, as it is the successor of the State of Andhra Pradesh,
invoking Sec.104 of the A.P. Reorganisation Act, 2014.
81. No counter affidavit has been filed by the State of A.P or State
of Telangana any of the other respondents in this Writ Petition except
the District Collector.
The Third Writ Petition- W.P.No.9262 of 2006
82. In 2006, 112 members of the Society filed W.P.No.9262 of
2006 for a Writ of Mandamus declaring the inaction of the State of
Andhra Pradesh, the Hyderabad Municipal Corporation, the
Hyderabad Urban Development Authority, the District Collector,
Hyderabad and the Revenue Divisional Officer, Hyderabad in not
handing over Acs.38.00 and 2121 sq.yds in Sy.No.128/1 and 128/10
of Yousufguda, Hyderabad to the Society and it's members as per the
judgment dt.15.9.1989 of the Special court under the A.P. Land
Grabbing (Prohibition) Act, 1982 and helping the encroachers by
issuing notifications under the A.P. Slum Improvement (Acquisition
of Land) Act, 1956 in respect of land of the Society is illegal, arbitrary
and unconstitutional, and to set aside the notifications issued under the
said Act and forthwith hand over the said land to the Society. The
pleas are substantially similar to those raised in W.P.No.35061 of
1997 and W.P.No.14771 of 2003.
::32:: MSR,J & TVK,J
wp_35061_1997&batch
83. In the affidavit filed in support of this W.P, it was highlighted
that newspaper reports dt.29.4.2006 indicate that the State Cabinet had
allotted Acs.750 to Raheja Group and 2 others, Acs.15 to Army
Educational Society, Ac.72 in Puppalguda and Acs.38 in
Vattinagulapally to MLAs and MPs, Acs.32 in Vattinagulapally to
members of All India Services and Acs.32 in Nizampet and Acs.38 in
Pet Basheerabad to journalists.
84. The petitioners later filed W.P.M.P.No.3830 of 2015 to
substitute the "State of Telangana" in the place of "the Govt. of
Andhra Pradesh" in the cause title in the description of the respondent
No.1 and the said application was allowed on 21.4.2015.
85. No counter affidavit has been filed by the State of A.P or any of
the other respondents in this Writ Petition.
The Fourth Writ Petition - W.P.No. 13424 of 2006
86. In June 2006, 4 members of the Society filed W.P.13424 of
2006 for a Writ of Mandamus to declare the action of the respondents
in not implementing the judgment dt.15.9.1989 in LGC No.2 of 1988
of the Special Court constituted under the A.P. Land Grabbing
(Prohibition) Act, 1982 and facilitating the land grabbers to stay in
possession as illegal, arbitrary and unconstitutional and to direct the
respondents to implement the said judgment forthwith and hand over
possession of the land to the Society,
::33:: MSR,J & TVK,J
wp_35061_1997&batch
87. The pleas raised are substantially similar to those raised in
W.P.No.9262 of 2006.
88. The respondents are Govt. of Andhra Pradesh, the Municipal
Corporation of Hyderabad, the HUDA, the District Collector,
Hyderabad, the Revenue Divisional Officer, Hyderabad, the
Tahsildar, Khairatabad. Respondent No.6 is the Society.
89. The petitioners filed W.P.M.P.No.16210 of 2015, to substitute
the words "The State of Telangana" in place of "Government of
Andhra Pradesh" in the description of respondent no.1 and it was
ordered on 24.4.2015.
90. No counter affidavit has been filed by the State of A.P or any of
the other respondents in this Writ Petition.
The Fifth Writ Petition - W.P.No.7438 of 2007
91. In 2007, The Secretary to Government, Municipal
Administration and Urban Development Dept, State of Andhra
Pradesh sent a letter No.22753/M1/2005 dt.3.2.2007 to M.Krishna
Reddy and others, who are members of the Society rejecting it's
request to provide alternative land.
92. In this Letter dt.3.2.2007, the State Government sought to
contend that before issuing the notification under the A.P.Slum
Improvement (Acquisition of Land) Act, 1956, the Dy. Director,
Survey and Land Records had informed that ownership of the Ac.28-7
gts of land to be notified was with Smt.C.Rajya Lakshmi Devi, and so
::34:: MSR,J & TVK,J
wp_35061_1997&batch
notice under Sec.3(2) of the said Act was issued to her. It is alleged
that the name of the Society does not appear in the records of the
Survey and Land Records department and so the question of issuing
notice to the Society does not arise.
93. It is also stated that the Society was never in possession of the
land and that it had failed in allotting plots to members which resulted
in encroachment of land and development of slum; and settlement of
the issue outside Court is not possible in view of pendency of
W.P.No.s 14771 of 2003 and W.P.No.35061 of 1997; and it is open to
the Society to seek relief of making the land grabbers pay for the land
as mentioned in Sec.4(3) of the A.P.Slum Improvement (Acquisition
of Land) Act, 1956.
94. This was challenged by Sri M.Krishna Reddy and 40 other
members of the Society by filing W.P.7438 of 2007.
95. Petitioners in this W.P. contend that the said Letter dt.3.2.207
was issued without application of mind, that facts were deliberately
distorted to deprive the Society of the land and the petitioners of their
property, that provisions of law were ignored intentionally and
misinterpreted to legitimize the scandalous act of the respondents in
superseding order of a competent court. It is stated that even without
any gazette notification under the Act, the Commissioner of the
Municipal Corporation of Hyderabad took possession of additional
adjacent land of Ac.9-5 gts belonging to the Society for slum
::35:: MSR,J & TVK,J
wp_35061_1997&batch
improvement purpose even when Kalyannagar was not a slum., and
that this was a fraud on the statute.
96. It was contended that the plea of the State that it was not aware
of the ownership of the Society over the notified land was false and
invented to reject the claim of the petitioners; and under the
provisions of the A.P.Slum Improvement (Acquisition of Land) Act,
1956 it was mandatory to serve notice on the owner of the land
proposed to be acquired under the said Act. Reference is made to the
G.O.Ms.No.114 dt.15.2.1988 issued by the State Government granting
exemption to the land of Acs.38.00 and 2121 sq.yds purchased by the
Society from the provisions of the Urban Land (Ceiling and
Regulation) Act, 1976 and it is contend that the State, having issued it,
cannot plead ignorance of the title of the Society to the above land.
97. With regard to the plea of the State that the Society's name was
not reflected in the revenue and survey records it is stated that it the
duty of the Revenue authorities to update their records and it is stated
that pahanis for 1978-79 onwards show the possession of the Society
over the subject land, and that even the said G.O records that entries
in the Revenue records and Town survey records were not updated,
and the State cannot blame the Society for lapses of it's employees.
98. It also contended that this Court had held in Mohd.Ayub v.
Mohd.Abdul Lateef Khan1 that execution of the order of eviction
1
2006 (4) ALD 190
::36:: MSR,J & TVK,J
wp_35061_1997&batch
passed under the A.P. Land Grabbing (Prohibition) Act, 1982 is the
bounden duty of the Revenue Divisional Officer; that the decree
holder cannot initiate execution proceedings; and so the State cannot
blame the Society for it's failure to take possession of it's land.
Reliance was also placed on decision in Ch.Suryanarayana Murthy
v. Govt. of Andhra Pradesh2 that once slum dwellers are declared as
land grabbers by the Special tribunal under the A.P. Land Grabbing
Act, 1982, in the guise of notifications under the A.P. Slum
Improvement (Acquisition of Land) Act, 1956, the illegal occupations
cannot be regularized.
99. Petitioners sought a Writ of Mandamus to set aside the Letter
dt.3.2.2007 of the Government as illegal, arbitrary and contrary to
provisions of the A.P. Land Grabbing (Prohibition) Act, 1982, the
A.P. Slum Improvement (Acquisition of Land) Act, 1956 and to
declare it as unconstitutional and consequently direct the respondents
to forthwith implement the judgment dt.15.9.1989 of the Special
Court constituted under A.P. Land Grabbing (Prohibition) Act, 1982
or in the alternative to provide alternative land to the petitioners in
lieu of the grabbed land of Acs.38.00 and 2121 sq.yds of the Society.
100. The respondents are Govt. of Andhra Pradesh, the Municipal
Corporation of Hyderabad, the District Collector, Hyderabad, the
Revenue Divisional Officer, Hyderabad, the Tahsildar, Khairatabad,
HUDA, the Director of Town and Country Planning, the Registrar and
2
1993(1) APLJ 253
::37:: MSR,J & TVK,J
wp_35061_1997&batch
Commissioner of Cooperative Societies, Andhra Pradesh. The
respondent no.9 is the Society.
101. The petitioner filed W.P.M.P.No.3874 of 2015, to substitute the
words "The State of Telangana" in place of "Government of Andhra
Pradesh" in the description of respondent no.1 and it was ordered on
21.4.2015.
102. No counter affidavit has been filed by the State of
A.P/Telangana or any of the other respondents in this Writ Petition.
The sixth Writ petition - W.P.No.27532 of 2008
103. Some other members of the Society filed W.P.27532 of 2008 in
December, 2008 for a Writ of Mandamus declaring the action of the
Govt. of Andhra Pradesh, the Municipal Corporation of Hyderabad,
the Chief Commissioner, Land Administration, Hyderabad, the
District Collector, Hyderabad, the Revenue Divisional Officer,
Hyderabad, the Tahsildar, Khairatabad, the Director, Survey
Settlement and Land Records, Hyderabad and the Registrar and
Commissioner of Co-operative Societies in not handing over
possession to the Society of Acs.38.00 and 2121 sq.yds in
Sy.No.128/1 and Sy.No.128/10 of Yousufguda village as illegal,
arbitrary and unconstitutional and to direct the respondents to
forthwith handover possession to it or in the alternative to provide
land to it in lieu of the Acs.38.00 and 2121 sq.yds which is in
unauthorized occupation.
::38:: MSR,J & TVK,J
wp_35061_1997&batch
104. Reference is made in the affidavit filed in support of the Writ
Petition to cases of (i) M.Lakshminarayana, an Ex-MLA to whom
alternative land was allotted vide G.O.Ms.No.926, Rev (Assn.III)
dt.18.12.2000 when the judgment of the Special Court under the
A.P.Land Grabbing (Prohibition) Act, 1982 in LGC No.247 of 1995
could not be implemented and (ii) Pratap Lingam Goud, another Ex-
MLA to whom alternative land was allotted vide G.O.Ms.No.61,
dt.21.1.2006 (which was also reported in Andhra Jyothi telugu News
paper on 17.3.2006) when his plot was grabbed.
105. It is stated that if there is any difficulty in delivering back
possession of the Society's land as per the decision in LGC No.2 of
1988 rendered on 15.9.1989, then the members are willing take
alternative land of the same cost; and denial of similar treatment like
the Ex-MLAs by way of such allotment amounts to discrimination.
Pleas identical to those taken in W.P.9262 of 2006, WP.No.7438 of
2007 are taken.
106. The petitioner filed W.P.M.P.No.15904 of 2015, to substitute
the words "The State of Telangana" in place of "Government of
Andhra Pradesh" in the description of respondent no.1 and it was
ordered on 24.4.2015.
107. No counter affidavit has been filed by the State of
A.P/Telangana or any of the other respondents in this Writ Petition.
::39:: MSR,J & TVK,J
wp_35061_1997&batch
The seventh Writ Petition - W.P. No.3532 of 2009.
108. 7 members of the Society filed W.P.3532 of 2009 for a Writ of
Mandamus declaring the action of the respondents in not allotting
alternative land in lieu of the illegally occupied Acs.38.00 and 2121
sq.yds of the Society in Sy.No.128/1 and 128/10 of Yousufguda
village as illegal, arbitrary and unconstitutional and to consequently
direct the respondents to forthwith allot land equivalent to Acs.38.00
and 2121 sq.yds to the Society. Pleas identical to those taken in
W.P.No.9262 of 2006, W.P.No.7438 of 2007 and W.P.No.14771 of
2003 are taken.
109. The respondents are Govt. of Andhra Pradesh, the Greater
Hyderabad Municipal Corporation, Hyderabad, the District Collector,
Hyderabad, the Revenue Divisional Officer, Hyderabad, the
Tahsildar, Khairatabad.
110. The petitioner filed W.P.M.P.No.3829 of 2015, to substitute the
words "The State of Telangana" in place of "Government of Andhra
Pradesh" in the description of respondent no.1 and it was ordered on
21.4.2015.
111. No counter affidavit has been filed by the State of
A.P/Telangana or any of the other respondents in this Writ Petition.
The Eighth Writ Petition - W.P.11026 of 2009
112. In 2009, the Society filed W.P.No.11026 of 2009 against the
Govt. of Andhra Pradesh, the Greater Hyderabad Municipal
::40:: MSR,J & TVK,J
wp_35061_1997&batch
Corporation rep. by it's Commissioner, the District Collector,
Hyderabad, the Revenue Divisional Officer, Hyderabad, the
Tahsildar, Khairatabad for a Writ of Mandamus declaring the action
of the respondents in not allotting alternative land in lieu of the
illegally occupied Acs.38.00 and 2121 sq.yds of the Society in
Sy.No.128/1 and 128/10 of Yousufguda village as illegal, arbitrary
and unconstitutional and to consequently direct the respondents to
forthwith allot land equivalent to Acs.38.00 and 2121 sq.yds to the
Society.
113. In this Writ Petition after setting out the various events, it is
stated that it had till then made 85 representations to the State
Government to hand over possession of the grabbed land and that
while forwarding the 55th representation dt.29.3.2006, the then
Hon'ble Minister of the Municipal Administration and Urban
Development had issued directions to the Chief Secretary of the State
that the judgment of the Special Court in LGC No.2 of 1988 could not
have been superseded by executive orders and suggested settlement of
the issue amicably by following G.O.Ms.No.926 Rev (Asn-III) Dept
dt.18.12.2000; that the said G.O enabled the State to allot alternative
land to those who lost it in Unnikota at Kawadiguda which was
declared as a slum; and on 24.2.2009, the Hon'ble Minister has also
addressed a letter to the Hon'ble Chief Minister for resolution of the
dispute by allotment of alternative land in terms of the precedents
already existing in the Government.
::41:: MSR,J & TVK,J
wp_35061_1997&batch
114. The petitioner filed W.P.M.P.No.17564 of 2015, to substitute
the words "The State of Telangana" in place of "Government of
Andhra Pradesh" in the description of respondent no.1 and it was
ordered on 1.5.2015.
115. No counter affidavit has been filed by the State of
A.P/Telangana or any of the other respondents in this Writ Petition.
The Government Order G.O.Ms.No.113 Revenue ( Land Matters) issued on
1.6.2016 repealing the A.P.Land Grabbing (Prohibition) Act,1982 in relation
to the State of Telangana
116. Last but not the least is a Government order issued under
Sec.101 of the A.P. Reorganisation Act, 2014.i.e G.O.Ms.No.113
Revenue (Land Matters) issued on 1.6.2016 repealing the A.P. Land
Grabbing (Prohibition) Act, 1982 in relation to the State of Telangana
which came into effect from 1.6.2016.
117. Among other things this G.O, stated that judgment, decree or
order passed under the A.P.Land Grabbing (Prohibition) Act, 1982,
which remain unimplemented for any reasons, or pending before any
Court for execution as on the date of repealing order, shall stand
transferred to respective civil Courts having jurisdiction for it's
execution in terms of the provisions of the Civil Procedure Code,
1908.
::42:: MSR,J & TVK,J
wp_35061_1997&batch
The last order dt.12.7.2019 in Memo No.45038/Assn.III(1)/2008 dt.12.7.2009
of the State Government rejecting the request of the Society to allot
alternative land to it in lieu of Acs.38.00 and 2121 sq.yds which had been
grabbed by encroachers...
118. On 12.11.2018, in this batch of cases this Court had directed
that steps be taken to ascertain the availability of alternative land and
permitted the petitioners to make a representation to the Special Chief
Secretary, Revenue Lands Department of the State Government
indicating the availability of alternative land at other locations near
the city of Hyderabad.
119. The Society gave a representation on 27.11.2018 to the Special
Chief Secretary, Revenue Lands Department of the State Government
identifying the alternative lands at other locations.
120. On 17.12.2018, the Court recorded an undertaking from the
Additional Advocate General that progress be reported to the Court in
relation to the consideration of the representation made by the Society
for allotment of alternative land.
121. On 8.2.2019, the Court directed the Special Chief Secretary to
respond to the Letter dt.26.12.2018 sent by the Additional Advocate
General and inform the Court of the progress made on the
representation made by the Society for allotment of alternative land.
122. On 28.2.2019, the Court also passed a detailed order
reprimanding the State Government for not taking any decision in the
matter even though this litigation had be pending for 22 years and
directing it to take a decision in one month.
::43:: MSR,J & TVK,J
wp_35061_1997&batch
123. At that stage, on 12.7.2019 the State Government of Telangana
issued Memo No.45038/Assn.III (1)/20089 dt.12.7.2019 rejecting
request of the Society for allotment of alternative land stating that no
vacant lands are available in the Districts of Hyderabad and Ranga
Reddy.
124. This Memo No.45038/Assn.III (1)/20089 dt.12.7.2019 was
challenged in W.P.No.11026 of 2009 by filing an application IA.No.2
of 2019 to amend the previous prayer, which IA is hereby ordered.
The consideration by the Court
125. Having set out the events and pleadings in extenso as above, we
shall proceed to deal with the contentions of Sri C.V.Mohan Reddy,
Senior Counsel appearing for Sri Ramakrishna Pativada, Hamsa
Devineni, Sri R.G. Shashidhar Singh, Sri C.Hanumantha Rao, Sri
Srinivasa Rao Bodduluri, Sri P.Prabhakar Rao, and
Sri Mohd.Rafiq, counsel for petitioners in all these cases; and Sri
Harendra Prasad, Special Government Pleader attached to the Office
of the Advocate General for the State of Telangana, Sri Pasham
Krishna Reddy, Counsel for the Greater Hyderabad Municipal
Corporation (the changed name of the Municipal Corporation of
Hyderabad) and Sri Y.Rama Rao, Standing Counsel for the HMDA
(the successor of the HUDA).
::44:: MSR,J & TVK,J
wp_35061_1997&batch
The title of the Society to land of Acs.38.00 and 2121 sq.yds. is an established
fact
126. The Regd.Sale deed Doc.No.3143 of 1964 dt.5.11.1964 read
with the Rectification deed Doc.No.751 of 1969 dt.7.3.1969 and
Regd.Sale deed Doc.NO.2074 of 1964 dt.16.11.1964 filed by the
Society shows that the Society had purchased Acs.38.00 and 2121
sq.yds in Sy.No.128/1 and 128/10 of Yousufguda Village from
Smt.C.Rajya Laksmi Devi and others.
127. Vide proc. D.Dis No.3928/73/A6 dt.1.3.1974, the Director of
Town Planning, Regional Planning Unit-1, Municipal Corporation of
Hyderabad wrote to the Special Officer of the Municipal Corporation
of Hyderabad that layout of land purchased by the Society was
suitably amended in L.P.No.14/1974. Once the Layout was issued by
the Municipal Corporation of Hyderabad to the Society, it is presumed
to know that the Society is the owner of the said land.
128. But the Revenue and Town Survey records were not updated by
the Revenue and the Municipal authorities. So final orders dt.7.1.1981
had been passed under Sec.9 of the Urban Land (Ceiling and
Regulation) Act, 1976 by the competent authority under the said Act
computing the land purchased by the Society in the holding of Smt.
C. Rajya Lakshmi Devi. On account of this, the Special Officer and
Competent Authority requested the State Government of Andhra
Pradesh to exercise Revisional powers under Sec.34 of the said Act.
So the State Government issued G.O.Ms.No.114 Revenue (UC.I)
::45:: MSR,J & TVK,J
wp_35061_1997&batch
Department dt.15.2.1988 exercising powers under Sec.34 of the said
Act, set aside the orders passed under Sec.9 of the said Act and
excluded the land purchased by the Society from the holding of
Smt.C.Rajya Lakshmi Devi. In the Annexure to the said Government
Order, the name of the Society is clearly mentioned as also the extent
of Ac.34-37 gts which she had sold to the Society. (The balance
extent in Acs.38.00 and 2121 sq.yds was sold to the Society by a
different party). Thus, even the State Government was aware that the
Society is the owner of the said land purchased by the Society from
Smt.C.Rajya Lakshmi Devi.
129. Even otherwise, registration of a deed of transfer of property
being deemed 'public notice' under Explanation I to Sec.3 of the
Transfer of Property Act,1882, the State is presumed to know that the
Society is the owner of the land of Acs.38.00 and 2121 sq.yds in
Sy.No.128/1 and Sy.NO.128/10 of Yousufguda village.
130. But on account of pendency of these proceedings under the
Urban Land (Ceiling and Regulation) Act, 1976, the Society could not
transfer the plots to it's members.
O.S.No.2616 of 1978
131. In the meantime, when there were attempts at encroachment of
this land, the Society first filed O.S.No.2616 of 1978 before the II
Asst.Judge, City Civil Court, Hyderabad for a perpetual injunction
against 4 persons. An interim injunction was granted on 14.8.1978
and the suit was decreed on 30.11.1981. In this suit, an Advocate
::46:: MSR,J & TVK,J
wp_35061_1997&batch
Commissioner had been appointed and he filed a report on 17.3.1979
stating that there were 36 huts only in an area of 2 acres erected by
40-50 persons at that time, and records that that two of the
encroachers stated that on the advice of one Laxmiah, a leader of the
locality, they erected the huts. He also recorded that there was a notice
board put up by the Society that it is the owner of the land, that there
was also a fence around the land which was removed and the iron rods
broken. He also stated that the land was divided into plots and
demarcated by stones and most of the stones were removed.
The LGC No.2 of 1988 and the judgment dt.15.9.1989 therein of the Special
Court
132. The small encroachment noticed in 1979 of the land purchased
by the Society grew to 503 encroachers by 1988 and the Society was
then forced to file Land Grabbing Case (LGC) No.2 of 1988 under
Section 8 of the A.P.Land Grabbing (Prohibition) Act, 1982 before
the Special Court constituted under the Act against the 503 persons
and seek their eviction through due process of law. Even at that time,
the property of Acs.38.00 and 2121 sq.yds had been valued by the
Society at Rs.10,23,22,550/-.
133. Cognizance of the case was taken by the Special Court under
proviso to Sec.8 (1-A) and notices were issued to the respondents.
A notification was also issued under the proviso to sub-Section (6) of
Sec.8 of the said Act and published in the Andhra Pradesh Gazette
Part-II (Extraordinary) dt.22.9.1988 calling for objections, if any, on
::47:: MSR,J & TVK,J
wp_35061_1997&batch
or before 26.9.1988. No objections were filed by any of the
respondents in the LGC, in spite of service of notices, and so they
were then set ex parte.
134. In the evidence adduced before the Special Court, the Society's
witnesses deposed about the active encouragement given to the land
grabbers by P.Janardhan Reddy, the then MLA, the assault committed
by the land grabbers on the watchman of the Society, the promise by
the MLA to sort out the issue and get the encroachers to vacate the
land by getting for them alternative land, that the said MLA later
became a Minister, but he did nothing in spite of the office bearers of
the Society meeting him several times. This evidence of involvement
and active encouragement given by the local MLA P.Janardhan
Reddy, who also later became a Minister, to the land grabbers was
accepted by the Special Court, and it declared that the Society is the
owner of the subject land, that all the respondents are land grabbers/
encroachers and they are liable for eviction.
135. By judgment dt.15.9.1989, L.G.C.2 of 1988 was allowed by the
Special Court constituted under the A.P. Land Grabbing (Prohibition)
Act, 1982 and the respondents were directed to be evicted from the
subject land and the land was directed to be redelivered to the Society;
the respondents were given 3 months time to remove the structures
erected by them in the land and vacate it; and in default, the Society
was granted liberty to get them removed and take vacant possession of
the land.
::48:: MSR,J & TVK,J
wp_35061_1997&batch
136. Though I.A.No.424 of 1989 was filed by some of the
respondents to set aside the ex parte decree dt.15.9.1989 in LGC.No.2
of 1988, it was dismissed with costs on 15.1.1990.
137. No Writ Petition was filed challenging the Order dt.15.9.1989
in LGC No.2 of 1988 or the order dt.4.1.1990 in IA No.424 of 1989 in
LGC 2 of 1988 and these orders attained finality.
The employees of the State were also aware of the ownership of the Society of
the subject land
138. We may point out that as per Rule 6 (1) of the Rules framed
under the A.P.Land Grabbing (Prohibition) Act, 1982, every
application filed under Sec.8 or every case taken cognizance by the
Special Court is to be referred for local inspection or verification by
the Mandal Revenue Officer having jurisdiction over the area. This
procedure is presumed to have been followed by the Special Court.
139. Also under Rule 15 of the Rules framed under the Act, the
competent authority to execute orders of eviction passed by the
Special Court is the Revenue Divisional Officer.
140. It states:
"15. Procedure for taking possession.
(1) The Court/Tribunal shall communicate its final decision or order
in respect of the Government land to the affected parties and also to
the Revenue Divisional Officer to give effect to its decisions. In
respect of other lands the final decision/ order shall be
communicated to the affected parties who shall take action to give
effect to the decision in accordance with the provisions of the code of
Civil Procedure, 1908.
::49:: MSR,J & TVK,J
wp_35061_1997&batch
(2) The Revenue Divisional Officer shall on receipt of the order of
the Court issue or arrange to issue a direction in Form V deputing
any Officer not lower in rank than a Revenue Inspector to take
possession of the grabbed land on behalf of the Court and deliver
possession of the land to the person ordered by the Court.
(3) A copy of the authorisation issued by the Revenue Divisional
Officer shall be served or arranged to be served on the person in
possession or occupation of the land, as the case may be.
(4) Where the person in possession or occupation of the grabbed
land delivers possession thereof voluntarily, the officer so deputed
by the Revenue Divisional Officer under sub-rule (2) shall record a
statement of the person to that effect and also record a certificate in
Form VI and send the same to the Revenue Divisional Officer
concerned and the Court.
(5) Where the person in possession or occupation of the grabbed
land fails to deliver possession of that land voluntarily the officer, so
deputed under sub-rule (2) may enter on the land and take
possession thereof on behalf of the Revenue Divisional Officer after
removing any obstruction or unauthorised occupant, if any, on such
land, by taking such Police assistance as may be necessary and
record a certificate in Form VII duly attested by two witnesses.
(6) The certificate in Form VII shall be prepared in triplicate and
one copy each shall be sent to the Special Court/Revenue Divisional
Officer/Mandal Revenue Officer.
(7) Where the Revenue Divisional Officer directs the Officer so
deputed to deliver possession to the person ordered by the Court, the
Officer shall accordingly deliver possession and record a certificate
to that effect.
(8) Where the Revenue Divisional Officer has been directed that the
land taken possession of shall be kept under his control and
management, the officer so deputed under sub-rule (2) shall, take
possession of the land and report the same to the Revenue Divisional
Officer and seek his directions.
(9) An order granting compensation and also profits and cost of
redelivery passed in favour of a owner other than the Government,
may be executed by the Court through the Tribunal in accordance
with the provision of the Code of Civil Procedure, 1908.
::50:: MSR,J & TVK,J
wp_35061_1997&batch
(10) The Tribunal shall execute its order granting compensation and also
profits and costs of redelivery passed in favour of a owner other than the
Government in accordance with the provisions of the Code of Civil
Procedure, 1908."...
141. The Revenue Divisional Officer, Hyderabad had issued Notice
No.1/1248/90 dt.12.3.1990 to the Mandal Revenue Officer, Golconda
and to the Dy.Tahsildar (Land Grabbing), Golconda Mandal to take
possession of the Acs.38.00 and 2121 sq.yds., from the land grabbers
so declared in LGC No.2 of 1988 and deliver possession of the said
land to the Society immediately.
142. Thus both the Revenue Divisional officer and the Mandal
Revenue Officer, employees of the then State of Andhra Pradesh were
aware of the ownership of the Society over the above land.
143. So we hold that the plea of the Special Government Pleader
appearing for the State that it was unaware of the ownership of the
Society over the Acs.38.00 and 2121 sq.yds in Sy.No.128/1 and
128/10 of Yousufguda village much after 1992 as it is not a party in
LGC proceeding, is brazenly false and unbelievable.
The inaction of the Revenue Divisional Officer to execute the eviction order
of the Special Court in LGC No.2 of 1988
144. The Revenue Divisional Officer, Hyderabad did nothing after
issuing the Form-V notice dt.12.3.1990 thereafter and the order in
LGC No.2 of 1988 was never executed.
::51:: MSR,J & TVK,J
wp_35061_1997&batch
145. In the written arguments filed by the Special Govt. Pleader
appearing for the State, it is contended that neither the Government
nor Collector, nor any of the Govt. departments were made a party to
the LGC, that since the entire land was covered by dwelling units and
pucca structures, there would be a law and order issues, the judgment
in the LGC No.2 of 1988 could not be executed.
146. When Rule 15 of the rules framed under the A.P. Land
Grabbing (Prohibition) Act, 1982 mandated execution of eviction
orders through the Revenue Divisional Officer only (as is explained
below), the fact that the State Govt. or it's departments or the District
Collector are not parties to the LGC No.2 of 1988 is wholly irrelevant
and cannot be an excuse for it's non-execution.
147. Neither can the State contend that law and order issues would
arise if the Revenue Divisional Officer were to proceed to execute the
judgment dt.15.4.1989 in LGC.No.2 of 1988 because the legal process
cannot be allowed to be defeated or made a mockery if the State or it's
officials were to be scared of unsocial elements/land grabbers. There
is no place in an orderly society for such an argument and State
cannot absolve itself of the responsibility to execute judicial orders by
taking such a plea.
148. In our opinion, the political influence wielded by the MLA
P.Janardhan Reddy, who actively encouraged the land grabbers and
even became Chief Patron of the Karmikanagar Weaker Sections
Welfare Association comprising the land grabbers, is the actual reason
::52:: MSR,J & TVK,J
wp_35061_1997&batch
for the inaction of the Revenue divisional officer to do anything to get
the land grabbers to vacate the land at that time.
149. The policy behind the enactment of the A.P.Land Grabbing
(Prohibition) Act, 1982 was explained in the Statement of Objects and
Reasons as under:
"It has come to the notice of the Government that there are
organized attempts on the part of certain lawless persons
operating individually and in groups to grab either by force or by
deceit or otherwise lands belonging to the Government, a local
authority, a religious or charitable institution or endowment,
including a wakf or any other private person.
In urban areas due to pressure on land, prices have been
constantly soaring high, and taking advantage of this phenomenon,
unscrupulous and resourceful persons backed by wealth and
following occupied without any semblance of right, vast extents of
land belonging to the Government, Local authorities, Wakfs, and
Charitable and Religious Endowments and evacuees and private
persons. In several cases such illegal occupations were noticed in
respect of lands, belonging to private individuals who are not in a
position to effectively defend their possession. In many cases this is
being done by organized groups loosely called "Mafia", a distinct
class of economic offenders, operating in the cities of Andhra
Pradesh. Unless all such cases of land grabbing are immediately
detected and dealt sternly and swiftly by specially devised
adjudicating forums the evil cannot subside and social injustice
will continue to be perpetrated with impunity. If civil and criminal
actions are dealt by two separate forums, the desired objective
cannot be achieved due to procedural delays. In every case of land
grabbing the person responsible is liable in tort and also for
criminal action. To remedy this menace it is felt that a Special
Court should be constituted with jurisdiction to determine both
civil and criminal liabilities and also award sentences of
imprisonment and fine in order to advance the cause of justice. . ."
::53:: MSR,J & TVK,J
wp_35061_1997&batch
150. A Division Bench of this Court in Jonnalagadda Samrajyam
vs. Registrar, The Special Court constituted under A.P. Land
Grabbing (Prohibition) Act, 19823 held in the following terms:
"Having regard to the organized attempt on the part of
certain lawless persons, either operating individually or in groups
in order to grab, either by force or by deceit, the lands whether
belonging to the Government, a local authority, a religious or
charitable institution or endowment, including wakf or any other
private individuals in the State, more particularly, in urban areas,
which was affecting adversely the public order, to curb such
unlawful activities the Act was conceived. In order to avoid law's
delays, both in civil and criminal courts, having regard to the
expediency to deal civil as well as criminal actions by one and the
same forum, so as to achieve the desired object of curbing the act
of land grabbing, being resorted to by the mafia, more particularly
in respect of urban lands, the State legislature deems it fit in its
wisdom to remedy this menace by establishing a Special Tribunal
at the District level and a Special Court at the State level, so as to
eventually help the persons, who are not in a position to effectively
defend their possession. This small piece of legislation contains 17
Sections with a schedule appended to the Act at the end."
(emphasis supplied)
151. Thus the enactment of the A.P. Land Grabbing (Prohibition)
Act, 1982 had a noble objective and was to advance the public policy
to protect even lands of private persons from the land mafia, and see
that expeditious civil and criminal actions are initiated by the forums
created under the Act to help persons who are not in a position to
effectively defend their possession.
3
MANU/AP/0629/2006 = 2006 (6) ALD 176 (DB)
::54:: MSR,J & TVK,J
wp_35061_1997&batch
152. Thus it was the statutory obligation of the Revenue Divisional
Officer to implement the judgment dt.15.9.1989 of the Special Court
constituted under the Act by following the procedure for execution of
the eviction decree against the land grabbers mentioned in Rule 15 of
the Rules framed under the Act.
153. His failure and the defence of the State for his inaction shows
how the State's political and the permanent executive has failed in
protecting the citizens who are members of the Society and acted
contrary to the legislative policy set out above to deal with the
unlawful elements in the Society thereby defeating the purpose for
which the Act was enacted.
The execution of eviction orders under the A.P.Land Grabbing (Prohibition)
Act,1982 can only be by the Revenue Divisional Officer and no E.P. need be
even filed
154. In Mohd.Ayub (1 Supra), a learned Single Judge of the
Andhra Pradesh High Court held that execution of the order of
eviction passed under the A.P.Land Grabbing (Prohibition) Act, 1982
is the bounden duty of the Revenue Divisional Officer and the decree
holder cannot initiate execution proceedings. The Court held:
"6. It is not in dispute that under the provisions of the Act, a
Special Court was constituted for dealing with the cases, where
it was alleged by one party against the other that the lands
belongs to the party complained of grabbed or occupied by the
other. In such circumstances, the Special Court constituted under
the Act has been given powers to deal with and adjudicate upon
the dispute and pass appropriate orders, and if the facts of
grabbing by the respondent is found, an order for eviction of the
::55:: MSR,J & TVK,J
wp_35061_1997&batch
said land grabber and for restoration of the possession to the
applicant/petitioner. Admittedly, in the present case there is an
order passed in favour of the respondents for effecting delivery
of possession treating the petitioner/Judgment Debtor, who is the
respondent in the O.P. as grabber of the land in question. The
issue relates to the mode of execution of the said order. Specific
procedure is contemplated under the Rules. Rule 15 specifically
provides that the Court or the Tribunal shall communicate its
final decisions or order to the effected parties and also to the
Revenue Divisional Officer to give effect to the decision of the
Court. The Revenue Divisional Officer shall on receipt of the
order of the Court, issue or arrange to issue a direction deputing
any officer not lower in rank than a Revenue Inspector to take
possession from the possessor of the grabbed land on behalf of
the Court and deliver possession of the land to the person
ordered by the Court. Therefore, as there is a specific procedure
provided under the Rules, there was no need for the person in
whose favour an order was passed to approach any authority for
implementation of the said order. In the light of the said specific
procedure provided under the Rules, no execution petition is
expected to be filed, more so before the Tribunal, which passed
the order. The exclusion of the jurisdiction of the Tribunal or
Special Court to execute its order as to the delivery of possession
is also clear from the provisions of the Sub-rule (10) of Rule 15
itself, where the Tribunal was given power to execute its order
granting compensation and costs of such delivery. If any order is
passed with reference to those aspects under the said provisions
with reference to the above said items, the execution is in
accordance with the CPC before the Tribunal itself. Therefore, it
is clear that as far as the delivery of possession is concerned,
when once an order is passed by the Tribunal or Special Court,
the Revenue Divisional Officer is obligated to give effect of the
said order by implementing the same, and therefore, there was
no need to file any execution petition." ( emphasis supplied)
155. This was reiterated in Jonnalagadda Samrajyam (3 supra) and
it was declared that Rule 15 in particular deals with the procedure for
::56:: MSR,J & TVK,J
wp_35061_1997&batch
taking possession of the land grabbed by the grabber; that the Act is a
self-contained code taking care of the right as well as the remedy; that
jurisdiction of the Special Tribunal/Special Court, is exclusive and it
ousts the jurisdiction of the civil Court in respect of the alleged act of
land grabbing; the Special Tribunal/Court under the Act is competent
to decide and determine the questions as regards title, or right to,
lawful possession of the land alleged to have been grabbed;
156. This legal position continued till 2012 when the State amended
Rule 15 vide G.O.Ms. No. 539 Revenue (Acts and Rules) Department
dt.25.08.2012:
"Rule 15(1): The Court/Tribunal shall communicate its final decision
or order in respect of the Government land to the affected parties and
also to the Revenue Divisional Officer to give effect to its decisions. In
respect of other lands the final decision/order shall be communicated
to the affected parties who shall take action to give effect to the
decision in accordance with the provisions of the Code of Civil
Procedure, 1908."
157. The purpose of amended Rule is to discontinue from 25.8.2012
the existing scheme as to execution of the orders of the
Court/Tribunal, through the Revenue Divisional Officer, insofar as
private lands are concerned. Thus, the execution of any decision of
Court/Tribunal so far as Government lands are concerned continues
with the RDO, but has only been amended from 25.8.2012 so far as
private lands, that all decisions of the Court/Tribunal are now made
executable through the civil Court under the provisions of the Code of
::57:: MSR,J & TVK,J
wp_35061_1997&batch
Civil Procedure, 1908. (See S.V. Narasimhulu Naidu and Ors. vs.
Government of Andhra Pradesh and Ors4.)
158. But by 25.8.2012, the Revenue Divisional Officer, who was the
only repository of power to execute the judgment dt.15.9.1989 of the
Special Court in LGC No.2 of 1988, had done nothing though 23
years had elapsed by then.
159. The legal position that the execution of the orders of eviction by
the Revenue Divisional Officer, an employee of the State Government
only till 25.8.2012, and there is not even any necessity for the Society
to file an execution petition, is not even disputed by the Special Govt.
Pleader attached to the Office of the Advocate General.
160. Yet it is stated in the course of arguments by the Special Govt.
Pleader attached to the Office of the Advocate General that the
Society or it's members should have done something more to take
possession of the land belonging to the Society and it was the Society
which was guilty of laches. Such a stand cannot be countenanced.
The repeal of the A.P.Land Grabbing (Prohibition) Act,1982 in 2016 has no
bearing on these cases
161. It is then contended by the Special Government Pleader that
now that the State of Telangana had repealed the A.P. Land Grabbing
(Prohibition) Act, 1982 by issuing G.O.Ms.No.113 revenue (Land
Matters) Department dt.1.6.2016, and permitted unimplemented
judgments of the Special Court under the said Act to be executed in
4
(2013) 6 ALD 27 (DB)
::58:: MSR,J & TVK,J
wp_35061_1997&batch
the ordinary civil court under Or.XXI CPC, 1908, the Society can go
now to the Civil Court and file an Execution Petition to execute the
judgment dt.15.9.1989 in LGC.No.2 of 1988.
162. We may note what the said G.O states in clause (vi) regarding
this issue as under:
" (vi) Notwithstanding any Rule, judgment, decree or order of any
Court :-
The Judgment , decree or order passed under the A.P.Act12/1982,
which remain unimplemented for any reasons, or pending before any
Court for execution as on date of the Repealing order, shall stand
transferred to respective Civil Courts having jurisdiction for it's
execution in terms of the provisions of the Civil Procedure
Code,1908."
163. In our opinion, this clause only allows transfer of 'pending
execution proceedings' before a Special Court to the Civil Court. But
in this case, there is no such 'pending execution proceeding' at all
because the Revenue Divisional Officer, after issuing the Form-V
notice on 12.3.1990, had abandoned it. So the terms of this G.O.
cannot be of any assistance to the Society, and the State cannot rely on
it to non suit the Society or the other petitioners.
164. Further the repeal of the A.P. Land Grabbing (Prohibition) Act,
1982 occurred on 1.6.2016, while the judgment of the Special court in
LGC No.2 of 1988 was pronounced on 15.9.1989. Thus the repeal
occurred 27 years later, and the same cannot be pleaded as a valid
defence for the culpable inaction of the Revenue Divisional Officer in
not implementing the judgment dt.15.9.1989 in the LGC No.2 of 1988
::59:: MSR,J & TVK,J
wp_35061_1997&batch
for nearly three decades so as to relegate the parties to Civil Court for
execution.
165. Having disabled the Society from recovering possession of the
land till 2012, which the State through it's Revenue Divisional officer,
was statutorily obligated to do, during these 23 years, it is grossly
unfair on it's part to now give gratuitous advice to the Society to go
before the Civil Court and try to get possession.
166. More so because, in these intervening 27 years, the subject land
has been occupied by hundreds of encroachers and several more pucca
structures had come up.
167. According to the report dt.19.6.2009 filed by the Officers'
Committee referred to above, the entire Acs.38.00 and 2121 sq.yds is
covered by pucca structures and dwelling units as on that day itself.
168. Only the State with it's police power could have executed the
decree dt.15.9.1989 in LGC No. 2 of 1988 and without the State's
help, it would be impossible for the Society to get it executed the
judgment in LGC.No.2 of 1988, as it would require an Army to clear
the land which the Society and it's members would hardly be able to
do.
The agreement dt.31.7.1991 between the Society and the Karmikanagar
Weaker Sections Welfare Association cannot be pleaded by the State as a
defence to it's inaction to implement the judgment dt.15.9.1989 in LGC No.2
of 1988.
169. The Special Government Pleader then contended that the
Society had suppressed about the agreement dt.31.7.1991 between
::60:: MSR,J & TVK,J
wp_35061_1997&batch
itself and the Karmikanagar Weaker Sections Welfare Association
agreeing to sell it's land for Rs.25/- per sq.yd and so the Writ Petition
should be dismissed and the Society be directed to pursue it's
remedies for enforcement of the said agreement.
170. No doubt the existence of this agreement was not disclosed by
the Society in W.P.No.35061 of 1997.
171. Clauses 1 and 2 of the said agreement states:
" (1). The second party Welfare Association agreed to undertake
to collect the cost of the land from all the respondents in LGC No.2
of 1988 and from all other occupants of the schedule lands at the
rate of Rs.25/-per sq.yd from the individual occupants depending
upon their respective area in their occupation. The first party
Society has agreed for the same.
(2) The second party Welfare Association requested 90 days time
from the sate of this agreement for finalization of collection of
amounts from individual members and remit the same failing
which this agreement stands cancelled." (emphasis supplied)
172. It is not the case of the State that any sum was paid under the
said agreement to the Society within the time aforesaid or till date. In
view of clause (2), the agreement stood cancelled by such non-
payment.
173. Once it stood cancelled, it has no legal effect.
174. So non-mention of it by the Society cannot be termed to be a
suppression of fact disentitling them to relief.
175. The Society alleges that the eviction process to evict the
judgment debtors / land grabbers was stalled due to political pressure
::61:: MSR,J & TVK,J
wp_35061_1997&batch
wielded by P.Janardhan Reddy, the then Local MLA and later
Minister, and in spite of repeated requests of the Society's office
bearers, the Revenue Divisional officer did nothing on account of
political influence.
176. The land grabbers, who suffered the judgment in LGC No.2 of
1988 had formed Karmikanagar Weaker Sections Welfare
Association, Yousufguda with the MLA P.Janardhan Reddy as Chief
Patron, which was the second party to the above agreement.
177. One can imagine the unequal bargaining power existing
between the Society and such a powerful politician backed
Karmikanagar Weaker Sections Welfare Association, and how unfair
the agreement's terms to sell the land at a throwaway price appear to
be.
178. The failure of the Revenue Divisional Officer to implement the
judgment of the LGC had undoubtedly coerced and compelled the
Society to enter into such agreement, and it would be a travesty of
justice for this Court to hold that against the Society and deny it relief
on the said ground.
The notifications issued under the A.P.Slum improvement (Acquisition of
Land) Act, 1956 by the State are issued in violation of principles of natural
justice, otherwise vitiated and are null and void
The notification under Sec. 3(1) of the A.P. Slum Improvement
(Acquisition of Lands) Act, 1956
179. The A.P. Slum Improvement (Acquisition of Land) Act, 1956 is
a statute enacted by the A.P. State Legislature for acquisition of lands
::62:: MSR,J & TVK,J
wp_35061_1997&batch
in Slum area in the then composite State of Andhra Pradesh Sec.3 of
the said Act states:
"3. Power to acquire land -
(1) Where the Government are satisfied that any area is or may be a source of
danger to the public health, safety or convenience of its neighbourhood by
a reason of the area being low lying, unsanitary, squalid or otherwise,
they may, by notification in the Andhra Pradesh Gazette declare such area
to be a slum area.
(2) Where the Government are satisfied that it is necessary to acquire any
land in a slum area for the purpose of clearing or improving the area, they
may acquire the land by publishing in the Andhra Pradesh Gazette a
notice to the effect that they have decided to acquire it in pursuance of this
section:
Provided that, before publishing such notice the Government shall call
upon the owner of, or any other person who, in the opinion of the
Government, is interested in, such land to show cause why it should not be
acquired; and after considering the cause, if any, shown by any person
interested in the land,the Government may pass such orders as they deem
fit.
Explanation-- Cause shown by the person interested in the land may
be against the declaration of the area as a slum area under sub-section (1)
as well as against the necessity to acquire the land for the purpose of
clearing or improving the area.
(3) Where a notice as aforesaid is published in the Andhra Pradesh
Gazette, the land shall, on and from the beginning of the day on which the
notice is so published, vest absolutely in the Government free from all
encumbrances.
(4) The Government may, by order, authorise any authority or officer
subordinate to them to exercise all or any of the powers conferred and
perform all or any of the duties imposed on them by this section, subject to
such conditions and restrictions as may be specified in the order."
::63:: MSR,J & TVK,J
wp_35061_1997&batch
180. On 12.12.1991, the Spl. Dy. Collector, L.A Section, UCD,
MCH issued a Notification in Form No.1 under Sec.3(1) of the A.P.
Slum Improvement (Acquisition of Lands) Act, 1956 stating that the
Commissioner of the Municipal Corporation of Hyderabad, the
delegate of the State Government (under G.O.Ms.No.45 Housing
dt.8.3.1963), is satisfied that an area of Ac.28-7 acres specified in the
schedule is a source of danger to public health, safety or convenience
of it's neighborhood by reason of the area being hill slope, unsanitary
or squalid.
181. Without application of mind this seems to have been issued
because there is no evidence of any hill existing in the subject land for
a hill slope to exist.
182. Though in the counter affidavits filed on behalf of the State it is
contended at more than one place that there was an Officer's
committee which identified the subject land as a 'slum' in 1986, on
the basis of which the area was notified as a 'slum', no factual report
allegedly prepared by the said officers' committee is placed on record
by the State along with the counter affidavits filed on it's behalf in
any of the Writ Petitions, to believe this plea.
183. In the written arguments, for the first time, it is contended that
in 1997, one P.Krishna, BC Cell President, TDP, Yousufguda
Division had given a representation to the Minister for Labour to give
orders to authorities for slum improvement of Karmikanagar slum,
that a report was then called for, and on the basis of the said report the
::64:: MSR,J & TVK,J
wp_35061_1997&batch
notifications under the A.P. Slum Improvement (Acquisition of
Lands) Act, 1956. There is no such plea in the counter affidavits filed
in W.P.No.35061 of 1997 or in W.P.No.14771 of 2003. No such
report is produced before this Court either to believe this plea.
184. This is critical because of the language of sub-section (1) of
section 3 of the A.P. Slum Improvement (Acquisition of land) Act,
1956 which states:
"Where the Government are satisfied that any area is or may
be a source of danger to the public health, safety or convenience of
its neighbourhood by the reason of the area being low lying,
unsanitary, squalid or otherwise, they may, by notification in the
Andhra Pradesh Gazette declare such area to be a slum area".
(emphasis supplied)
185. Thus the decision to declare an area as a 'slum' can only be
taken on basis of existence of conditions precedent i.e., that there were
squalid or unsanitary conditions. It has to be taken on 'objective'
criteria and is not a 'subjective' decision.
186. A Full Bench of the Andhra Pradesh High Court in Pithana
Appa Rao v. State of Andhra Pradesh and others5 considered the
constitutional validity of this provision and upheld it declaring:
" 25. Distinction between the validity of Section 3 on the alleged
ground and the possibility of abuse in its application to any case
must be kept in view. The possibility of abuse cannot be taken into
account in determining the ambit of power or the validity of any
provision. The word 'may' appearing in section 3 does not, in our
view, warrant any argument that it enables or empowers the
5
AIR 1970 AP 318 (FB)
::65:: MSR,J & TVK,J
wp_35061_1997&batch
Government to either proceed under the impugned Act or under
the general law of acquisition. That word merely vests a discretion
in the Government to either proceed under the impugned Act or
under the general law of acquisition. That word merely vestiges a
discretion in the Government to declare a particular area as a
slum area. The vesting of such enabling power is quite
understandable because there are large number of slums all or
majority of which cannot immediately be declared as slum areas.
Each case again has to be considered, whether it satisfied the
requirements of S. 3, and if it satisfies, it is only then that it can be
declared as slum area. Such a provision in the circumstances
could not have been couched in a mandatory language. It would
have created a legal obligation on the Government perhaps
enforceable in a court of law. That is not practically possible.
Slums present a special problem and involve huge finances and
various administrative problems and it is because of these
conditions that the wording is used thus making the provision an
enabling one. If it is not a slum area, it is obvious that section 3
will not apply. On the other hand, if it is a slum area, then it will
attract section 3. We are therefore satisfied that section itself vests
no discretion in the Government to acquire the land in a slum area
wither under the impugned Act or under the Land Acquisition Act.
In these circumstances the apprehension voiced by the learned
Advocates for the petitioners has no basis whatsoever. ... ...
26. It is true that the Government is left with the discretion to
declare whether a particular area is a slum area within the
meaning Act. But to say that such a discretion is unregulated or
uncontrolled would not be correct. Section 3 itself provides
sufficient guidance apart from what is provided in the preamble
and purview of the Act in regard to the exercise of such discretion.
The Government has to collect the necessary material. It may,
however, collect the material from any quarter in order to satisfy
itself whether the requirements of section 3 are satisfied and that
whether a particular area is a slum area or not and then only in
a case whether it is satisfied that it is a slum area that section 3
empowers the Government to declare it as such. We do not
therefore experience any difficulty in rejecting the contention that
section 3 is in conflict with Article 14 on the ground that it confers
::66:: MSR,J & TVK,J
wp_35061_1997&batch
on the Government uncontrolled and unregulated powers without
providing any standard in the exercise of such a wide discretion."
(emphasis supplied)
187. Thus only on the basis of existence of material that an area is
unsanitary or squalid and is a source of danger to public health, safety
or convenience of it's neighborhood, can it be declared as a 'slum
area' under subsection (1) of Section (3).
188. This principle was reiterated and followed by a Division Bench
of the A.P. High Court in Dr.Shyam Sunder Prasad v.
Commissioner, MCH6. the Division Bench held:
" 9. .. no single word can be read in isolation and reading all
the provisions together with the objects and reasons, the scheme which
emerges is that on a particular land if there is a slum and that slum
area becomes a source of danger to public health, safely or
convenience of its neighborhood by reason of the area being low
lying, unsanitary, squalid or otherwise, they may, by notification in
the Andhra Pradesh Gazette declare such area to be a slum area.
But, if the owner of the land undertakes to develop the same so as to
avoid the said unhygienic and unsanitary conditions abating the
nuisance, which may be caused to the neighbourhood, there cannot be
any invocation of the provisions of the Slum Act. It is only when the
land owner would be subject to excessive financial strain, the
Government comes forward after being satisfied that the said slum
area to be declared as a slum and then proceed further to acquire the
said land and develop the same removing the environmental pollution.
After a careful scrutiny of the material on record, we find at loss of
existence of any such factors enabling the Government to invoke
Section 3(1) of the Slum Act. On the property there had been
permanent and semi-permanent structures belonging to the
petitioners, in which there had been the occupants and the occupants
6
(2001) 6 ALT 209 (DB)
::67:: MSR,J & TVK,J
wp_35061_1997&batch
thereof had been the lessees of the pensioners paying the rents. Apart
from the said permanent and semi-permanent structures, which had
been in the occupation of the tenants, there are residential houses of
the petitioners and so also the opthalmic units including the hospital.
There is not even a whisper that the area on which a large complex
is there, is either low-lying , unsanitary or squalid. The word
'otherwise' employed in Section 3(1) of the Slum Act has to be read
ejusdem generis to the preceding words low-lying , unsanitary and
squalid, which only means likewise. But, there is no material to come
to the conclusion that even the ejusdem generis can be
applied."(emphasis supplied)
189. So without any material having been produced by the State to
justify that there were unsanitary or squalid conditions in the area and
it is a source of danger to public health, safety or convenience of it's
neighborhood, the State cannot claim that it was 'satisfied' that the
land of the Society ought to be declared as a 'slum'.
190. Further, we may point out that in the schedule to the
notification describing the land notified as 'slum', there is no mention
of the Sy.Nos or Town Sy.No.(T.S.No.) or the village name or the
name of the land owner. It is merely stated that Ac.28-7 gts sought to
be declared as a slum is located at Karmikanagar Slum, MCH-8,
Block-3. Even the number of families affected is left 'blank'.
191. The boundaries of the land mentioned in the notification as set
out below also appear 'vague':
North ... Houses
South ... Rahmatnagar
East ... Open Land
West ... Houses
::68:: MSR,J & TVK,J
wp_35061_1997&batch
192. From this notification, it is not possible to conclude that the
notification dt.12.12.1991 relates to land forming part of Acs.38.00
and 2121 sq.yds in Sy.No.128/1 and 128/10 of Yousufguda village
purchased by the Society.
193. For the aforesaid reasons, we hold that it is a clear case of
colorable exercise of power for an oblique purpose and a fraud on the
statute. The issuing of such notification dt.12.12.1991 is, in our
opinion, in bad faith to help the land grabbers backed the powerful
politician P.Janardhan Reddy, to defeat the very policy of the A.P.
Land Grabbing (Prohibition) Act, 1982, and to scuttle the execution of
the judgment dt.15.9.1989 in LGC.No.2 of 1988, and the said
notification is vitiated by illegality and arbitrariness.
The preliminary notification dt.20.3.1992 under Subsection (2) of Sec. 3 of
the A.P. Slum Improvement (Acquisition of Lands) Act, 1956
194. The Commissioner of the Municipal Corporation of Hyderabad,
the delegate of the State Government, next issued vide notification
No.107 dt.20.3.1992 notice in Form No.II proposing acquisition of the
area notified as slum area in the notification issued on 12.12.1991
under Sub-Section (2) of Section 3 of the A.P. Slum Improvement
(Acquisition of Lands) Act, 1956, and addressed it to Smt.
C. Rajyalakshmi Devi, the vendor of the Society, styling her as a
'person interested' in the land.
195. This notification dt.20.3.1992 does not mention the Sy.No.s of
the land or the village. It only mentions the slum area as
"Karmikanagar".
::69:: MSR,J & TVK,J
wp_35061_1997&batch
196. For the first time now in this notification dt.20.3.1992, the
Town Survey Numbers T.S.No.9/1 and 10 are indicated. These TS
No.s were not mentioned in the notification dt.12.12.1991 issued
under Section 3(1) of the Act notifying the area as 'slum area'.
197. More importantly, while proviso to Sub-section (2) of section 3
requires the State Government to call upon the owner of, or any other
person who, in the opinion of the Government is interested in such
land to show cause why it should not be acquired, the Society which
had become the owner of the notified land by 1964, is not issued any
notice to show cause by the Commissioner, Municipal Corporation of
Hyderabad, though the Society is not only the 'owner' but also
'person interested'.
198. We have already pointed out how the State and it's employees
were aware of the ownership of Acs.38.00 and 2121 sq.yds in
Sy.No.128/1 and Sy.No.128/10 at Yousufguda village.
199. Thus in spite of the State Government being fully aware that
Smt.C.Rajya Lakshmi Devi was no longer the owner of the land
notified as slum area and proposed to be acquired, and that the Society
was the owner thereof, the notice under proviso to sub-Section (2) to
Section 3 of the A.P.Slum Improvement (Acquisition of Land) Act,
1956 was not issued to the Society.
200. The plea of the State in the Letter No.22753/M1/2005
dt.3.2.2007 (challenged in W.P.No.7438 of 2007) that as per
::70:: MSR,J & TVK,J
wp_35061_1997&batch
information furnished by the Deputy Director, Survey and Land
Records, Hyderabad, the name of Smt.C.Rajya Laksmi Devi was
mentioned in the notice issued under Sec.3(3) of the Act on
20.3.1992, cannot at all be accepted. It appears the non-issuance of
notice to the Society under sub-Section (2) of section 3 is deliberate to
ensure that a fait accompli can be done behind the back of the Society
and permanently deprive it of it's land.
201. In fact it is the plea of the Society that Smt.C.Rajya Lakshmi
Devi, the notice mentioned in the notification dt.20.3.1992, was not
even alive by 20.3.1992 when the notice under sub-Section (2) of
Section 3 was issued to her; and that the State did not file any proof of
service of the notice on the said Smt. C. Rajya Lakshmi either along
with the counter-affidavit.
202. Non-issuance of notice to the Society, which is the real owner
of the land of Acs.38.00 and 2121 sq.yds, to file objections to
declaration of the said area as a 'slum area' and for acquisition of the
same under the Act, by the Commissioner, Municipal Corporation of
Hyderabad (who had himself issued an approved layout to the Society
on 1.3.1974) caused substantial prejudice to the Society and it's
members and renders the notification under Sub-section (1) of Sec.3
of the A.P.Slum Improvement (Acquisition of Land) Act, 1956 illegal,
and null and void on account of violation of principles of natural
justice and Art.300-A of the Constitution of India.
::71:: MSR,J & TVK,J
wp_35061_1997&batch
203. In State of Orissa v. Binapani Dei7, the Supreme Court had
declared that an order having civil consequences, if passed without
issuing notice, is a nullity. It held:
"9. ....An order by the State to the prejudice of a person in
derogation of his vested rights may be made only in accordance
with the basic rules of justice and fairplay. The deciding authority,
it is true, is not in the position of a Judge called upon to decide an
action between contesting parties, and strict compliance with the
forms of judicial procedure may not be insisted upon. He is
however under a duty to give the person against whom an enquiry
is held an opportunity to set up his version or defence and an
opportunity to correct or to controvert any evidence in the
possession of the authority which is sought to be relied upon to his
prejudice. For that purpose the person against whom in enquiry is
held must be informed of the case he is called upon to meet, and
the evidence in support thereof. The rule that a party to whose
prejudice an order is intended to be passed is entitled to a hearing
applies alike to judicial tribunals and bodies of persons invested
with authority to adjudicate upon matters involving civil
consequences. It is one of the fundamental rules of our
constitutional set-up that every citizen is protected against exercise
of arbitrary authority by the State or its officers. Duty to act
judicially would therefore arise from the very nature of the
function intended to be performed: it need not be shown to be
super-added.
If there is power to decide and determine to the prejudice of a
person, duty to act judicially is implicit in the exercise of such
power. If the essentials of justice be ignored and an order to the
prejudice of a person is made, the order is a nullity. That is a basic
concept of the rule of law and importance thereof transcends the
significance of a decision in any particular case."
(emphasis supplied)
7
AIR 1967 SC 1269 at para 9
::72:: MSR,J & TVK,J
wp_35061_1997&batch
204. In the context of providing personal hearing under Sec.5-A of
the Land Acquisition Act, 1894 and emphasizing it's mandatory
nature the Supreme Court in Bharat Sewak Samaj v. Lt. Governor8
held:
" 11....The Lieutenant Governor, Delhi who sanctioned the
invoking of urgency provisions was duty-bound to keep in mind that
the acquisition of one's land is a serious matter and, except in the
cases of real urgency, no person can be deprived of his property
without being afforded an opportunity to file objections under
Section 5-A(1) and without the sanction of law and without
complying with the basics of natural justice. Section 5-A represents
the statutory embodiment of the rule of audi alteram partem and
unless there are compelling reasons, the State cannot invoke the
urgency provision contained in Section 17(1) and dispense with the
application of Section 5-A.
The Supreme Court quoted it's earlier decision in State of Punjab
v. Gurdial Singh9 and held:
" In State of Punjab v. Gurdial Singh Krishna Iyer, J.
emphasised the necessity of reasonableness and fairness in the State
action of invoking the urgency provision in the following words:
(SCC p. 477, para 16)
"16. ... it is fundamental that compulsory taking of a man's
property is a serious matter and the smaller the man the more
serious the matter. Hearing him before depriving him is both
reasonable and pre-emptive of arbitrariness, and denial of this
administrative fairness is constitutional anathema except for good
reasons. Save in real urgency where public interest does not brook
even the minimum time needed to give a hearing land acquisition
authorities should not, having regard to Articles 14 (and 19), burke
(2012) 12 SCC 675, at page 680
(1980) 2 SCC 471
::73:: MSR,J & TVK,J
wp_35061_1997&batch
an enquiry under Section 17 of the Act. Here a slumbering process,
pending for years and suddenly exciting itself into immediate
forcible taking, makes a travesty of emergency power."(emphasis
supplied)
205. In our opinion, the provision of issuing notice to 'owner' of
land and 'person interested' before declaring it as a 'slum' and
'acquiring it' under sub-section 92) of sec.3 of the A.P.Slum
Improvement (Acquisition of Lands) Act, 1956, is equally mandatory
and serves the same purpose as an enquiry under Sec.5-A of the Land
Acquisition Act, 1894 and noncompliance thereof vitiates the said
notification dt.20.3.1992.
206. In Prabin Ram Phukan v. State of Assam10, the Supreme
Court declared that no person shall be deprived of property without
serving notice and such deprivation is illegal and violative of Art.300-
A of the Constitution of India. It declared:
"26. In our considered opinion, therefore, it is mandatory on the
part of the State to serve a proper notice to a person, who is liable to
pay any kind of State's dues strictly in the manner prescribed in the
Regulations. It is equally mandatory on the part of the State to give
prior notice to the defaulter for recovery of dues before his
properties (movable or/and immovable) are put to sale in the
manner prescribed in the Regulations.
27. It is a settled principle of law that no person can be deprived
of his property or any interest in the property save by authority of
law. Article 300-A of the Constitution recognises this constitutional
right of a person, which was till 1978 recognised as the fundamental
right of a citizen. Indeed, whether fundamental or constitutional, the
fact remains that it has always been recognised as a right
(2015) 3 SCC 605, at page 621
::74:: MSR,J & TVK,J
wp_35061_1997&batch
guaranteed under the Constitution in favour of a citizen/person and
hence no person can be deprived of this valuable right which the
Constitution has given to him, save by authority of law.
28. In the case in hand, we find that the appellants were deprived
of the land in question without following the procedure prescribed in
law because the so-called auction was conducted by the State behind
their back and without their knowledge. The action of the State was
thus clearly violative of the appellants' constitutional right
guaranteed under Article 300-A and hence such action cannot be
sustained in law."(emphasis supplied)
207. We are also of the opinion that the A.P.Slum Improvement
(Acquisition of Land) Act, 1956 is an expropriatory legislation and
has therefore to be strictly construed11.
208. In Gujarat Electricity Board v. Girdharlal Motilal12, the
Supreme Court held that in cases of expropriatory statutes if the
legislature prescribes a particular mode of exercise of power to
interfere with property rights, that power should be exercised only in
that manner and in no other way. Dealing with the power conferred
under the Electricity Act,1910 to acquire the property of a licensee
under the said Act by issuing proper notice, the Supreme Court
explained:
"5. ... These provisions confer a power on the State Electricity
Board to purchase the property of the licensee but that right can
be exercised only in the manner provided in the Act and not in any
other way. It must be remembered that the provisions in question
empower the State Electricity Board to interfere with the property
rights of the licensee. Therefore such a power will have to be
strictly construed. The legislature has prescribed a mode for the
Devinder Singh v. State of Punjab ... (2008) 1 SCC 728 PARA 43
AIR 1969 SC 267
::75:: MSR,J & TVK,J
wp_35061_1997&batch
exercising of that power and hence that power can be exercised
only in that manner and in no other manner. See Nazir Ahmad v.
King-Emperor and Ballavdas Agarwala v. Shri S.C.
Chakravarty. Before the option to purchase the undertaking can
be exercised, the State Electricity Board must call upon the
licensee by means of a notice in writing within the period
mentioned in Section 6(1) to sell the undertaking to it on the
expiration of the period for which licence was given. The
impugned notice does not require the licensee to sell the
undertaking. It merely notifies the respondent that the appellant
Board has decided to exercise and shall exercise the option of
purchasing the respondents undertaking on 3rd January, 1963, the
date on which the licence granted to him by the Government of
Baroda expired.
6. ...... The legislature has prescribed the manner of its
exercise. It must exercise in that manner and in no other way. It
must also be seen that the Parliament deliberately changed the
form of the notice to be given from what it was before Act 32 of
1959 was enacted. It prescribed that the notice must specifically
call upon the licensee to sell the undertaking. The mandate of the
law is clear and it must be obeyed. We agree with Mr M.C. Chagla
learned counsel for the licensee that the issuing of a notice strictly
in accordance with the provisions of Section 6(1) is a condition
precedent to the exercise of the power conferred on the State
Electricity Board to purchase the undertaking. That being so, we
must hold that Section 6(1) is mandatory and it must be strictly
complied with.
7. In this case we are not satisfied that the requirements of law
have at least been substantially complied with. Obviously the
person who issued the notice was not familiar with the legal
position. He appears to be under the misapprehension that Section
71 of the Electricity (Supply) Act, 1948 was still in operation when
he gave the notice. He appears to have been in two minds. He was
not sure whether he should issue the notice under the provisions of
the Act as they stood on the date of the notice or in accordance
with the provisions as they were prior to the coming into force of
Act 32 of 1959. At the top of the notice it is mentioned that it is
::76:: MSR,J & TVK,J
wp_35061_1997&batch
given under Section 6 of the Act but in the body the notice it is
purported to be given in exercise of the power available under
Section 71 of the Indian Electricity (Supply) Act. Again the
contents of notice indicate that it is a notice under Section 7(1)
read with Section 7(4) of the Indian Electricity Act, 1910 as the
stood prior to 1959. Quite clearly the notice speaks in two voices.
It is the product of a confused mind. We fail to see how any
commonsense can be read into it. On reading that notice the
licensee could not have been definite whether the State Electricity
Board purported to exercise the power under the law as it was on
the date of the notice or as it was under the unamended Act. Rights
and liabilities of the Electricity Board and the licensee before Act
32 of 1959 came into force are substantially different from their
rights and liabilities under the Act. On reading the impugned
notice it could not have been clear to the licensee that he had been
called upon to sell the undertaking in accordance with the law as it
then stood. We are unable to accede to the request of the Attorney-
General to read into notice words which are not there.
8. For the reasons mentioned hereinbefore we agree with the
High Court that the impugned notice is invalid and by virtue of
that notice the appellant cannot compel the respondents to sell the
undertaking in question."(emphasis supplied)
209. Keeping in view the above principle, we shall now quote the
operative part of the notification dt.20.3.1992 issued under proviso to
sub-section (2) of Sec.3 of the Act to Smt.C.Rajya Lakshmi Devi, the
vendor of the Society. It states:
" In exercise of the powers delegated to me under section 3(4) of the
said act, I hereby call upon you to show cause why the said land
owned by you enjoyed under easement right should not be made in
writing and addresses to the Commissioner Municipal Corporation
of Hyderabad, Hyderabad presented in person or through your
lawyer to the Municipal commissioner of Hyderabad within 15 days
of the receipt of this notice and send an advance Copy of it to the
Commissioner, Municipal Corporation of Hyderabad, Hyderabad
failing which it will be presumed that you have no cause to show
::77:: MSR,J & TVK,J
wp_35061_1997&batch
against the proposed acquisition and further action will be taken on
that presumption as required under the said Act." ( emphasis
supplied)
210. A reading of the above extract shows that in the earlier part, the
noticee Smt.Rajya Lakshmi Devi is not told what exactly she needs to
show cause against. The crucial words are missing and the notice does
not therefore make sense.
211. So applying the decision in Girdharlal Motilal (12 supra),
even assuming for the sake of argument that the Commissioner of the
Municipal Corporation of Hyderabad had rightly issued notice to
Smt.Rajya Lakshmi Devi, still the said notice being defective, no
further action can be validly taken on it.
212. For all these reasons we hold that the preliminary notification
dt.20.3.1992 under Sec.3(2) of the Act is vitiated, illegal and a nullity.
The final notification dt.30.6.1992 under sub-section (2) of section 3 of the
A.P.Slum Improvement (Acquisition of Land) Act, 1956
213. On 30.6.1992 in A.P.Gazette No.234, the Commissioner
Municipal Corporation of Hyderabad stated that notices to the owners
or persons interested were issued by him to show cause why the land
belonging to them should not be acquired with a view to undertaking
the execution of works designed to improve or clean the area in the
interest of public health, safety or convenience of it's neighborhood,
that objections were received form the owners thereof or the persons
interested in the said lands declared as a slum area, that the same
were considered and rejected; and so, in exercise of powers conferred
::78:: MSR,J & TVK,J
wp_35061_1997&batch
by sub-section (2) of Section 3 of the A.P. Slum Improvement
(Acquisition of Land) Act, 1956, he has decided to acquire the said
lands declared as "slum area' in pursuance of Section 3 (1) of the said
Act.
214. In this notification dated 30.6.1992, the Sy.No.s 128/1 and
128/10 and Yousufguda village were mentioned, which had not been
mentioned either in the notification dt.12.12.1991 issued under
Sec.3(1) of the said Act or in the preliminary notification /notice
dt.20.3.1992 issued to owners under sub-Section (2) of Section 3 of
the Act.
215. At para 2 in the counter affidavit filed in W.P.No.35061 of
1997 by the Mandal Revenue Officer, Khairatabad on behalf of
respondents 1 to 4 and also at para 3 of the counter affidavit filed by
the Special Dy.Collector, Land Acquisition, Municipal Corporation of
Hyderabad (5th respondent) they stated that no objections were filed
by anybody to the notifications issued under the said Act.
216. But this is contradicted by the final notification dt.30-6-1992
under sub-Section (2) of Section 3 of the Act which states:
" Whereas all the objections received from the owners thereof
or the persons interested in the said lands declare as slum area have
been duly considered and rejected."
217. Obviously, the counter affidavits were filed by the Officials of
State and the Commissioner, Municipal Corporation of Hyderabad
::79:: MSR,J & TVK,J
wp_35061_1997&batch
without reading the contents of the above final notification
dt.30-6-1992 under sub-Section (2) of Section 3 of the Act.
218. No explanation is offered by the Special Government Pleader
appearing for the State for this discrepancy.
219. There is of course no explanation from the respondents as to
who were the persons who filed objections to the notification
dt.12.12.1991, and notification dt.20-3-1992 issued under Section 3(1)
and Section 3(2) of the Act, how they were considered by the
respondents, and reasons for rejection of the same.
220. For the above reasons, and since this final notification
dt.30.6.1992 is based on the preliminary notification dt.20.3.1992
under Sec.3(2) of the said Act, which has been declared as a nullity,
final notification dt.30.6.1992 under Sec.3(2) of the said Act cannot
also survive, and is also declared as a nullity.
221. More importantly, Sec.5 of the A.P.Slum Improvement
(Acquisition of Land) Act, 1956 confers a statutory right on the land
owner whose land is declared as a "slum area' and acquired for
development, to compensation in the manner determined under Sec.6
of the Act by a 'prescribed authority'.
222. We may point out that there is no whisper in any counter
affidavit filed by the State about any steps taken to determine or pay
any amount to the Society for acquisition of it's land under the Act.
::80:: MSR,J & TVK,J
wp_35061_1997&batch
The Special Government Pleader attached to the Office of the
Advocate General confirmed this fact.
223. Thus the provisions of Art.14 and 300-A of the Constitution of
India and even the provisions of the Act were brazenly violated by the
State Government and it's Officials.
224. For these reasons we hold that the notification issued on
12.12.1991 under Sec. 3(1) of the Act, and notifications issued on
20.3.1992 and 30.6.1992 under Sec.3(2) of the Act are nullities.
Consequently, the State cannot contend that the land has vested in it
free from encumbrances under the Act.
The issuance of above notifications under the A.P.Slum Improvement
(Acquisition of Land) Act, 1956 is a colorable exercise of power, in bad faith
and to favor the land grabbers supported by the then MLA P.Janardhan
Reddy
225. The role of the MLA P.Janarhan Reddy, who also later became
a Minister, and was the Chief Patron of the Karmikanagar Weaker
Sections Welfare Association, in encouraging the land grabbers has
been referred to in the evidence adduced in the Special Court in LGC
No.2 of 1988 and had been accepted by the said Court in it's judgment
dt.15.9.1989. After the LGC was decreed, the said Association,
offered to purchase the land at a throw away price of Rs.25/- per
sq.yd, but did not pay anything to the Society and it's members did
not also vacate the land. The Revenue Divisional Officer, whose
statutory duty it was under rule 15 of the Rules framed under the
A.P.land Grabbing (Prohibition) Act, 1982 to execute the decree of
eviction in LGC No.2 of 1988, after issuing a notice in Form V under
::81:: MSR,J & TVK,J
wp_35061_1997&batch
Rule 15(2) to the Mandal Revenue Officer, Golconda to evict the
encroachers on 12.3.1990 strangely fell silent and did nothing further,
obviously under the political pressure. We have already held that as
per the procedure the Society cannot file an execution petition to
execute the decree of eviction and once the State officials succumbed
to the pressure of the MLA, the Society was helpless.
226. In this background, the initiation of proceedings under the
A.P.Slum Improvement (Acquisition of Land) Act, 1956 has to be
seen, as also the manner in which the said proceedings were taken (as
discussed in detail above).
227. Should the State help the land grabbers by initiating such action
and not help the real owners of the property whose property has been
unlawfully grabbed by the land grabbers without having any lawful
title?
228. Should a decision of judicial tribunal to evict land grabbers as
per the procedure under the A.P.Land Grabbing (Prohibition) Act,
1982 be allowed to be superseded by an executive action under the
A.P.Slum Improvement (Acquisition of Land) Act, 1956.
229. In Medical Council of India v. State of Kerala13, the Supreme
Court reiterated the basic principle that even the legislature can
change only the basis on which a decision is given by the court and
thus change the law in general, which will affect a class of persons
(2019) 13 SCC 185, at page 202
::82:: MSR,J & TVK,J
wp_35061_1997&batch
and events at large. It held that a legislature also cannot, however, set
aside an individual decision inter partes and affect their rights and
liabilities alone. Such an act on the part of the legislature amounts to
exercising the judicial power of the State and is akin to functioning as
an appellate court or tribunal, which violates the doctrine of
separation of powers.
230. So when even the legislature cannot set aside a judgment inter-
partes like the one rendered by the Special Court in LGC.No.2 of
1988, the executive (The State of A.P. or it's delegate, the
Commissioner of the Municipal Corporation of Hyderabad) cannot,
through a notification under the A.P.Slum Improvement (Acquisition
of Land) Act, 1956, nullify a judicial decision.
231. In LAO v. Raja Ram Jaiswal14, the Supreme Court had held:
"26. Where power is conferred to achieve a purpose it has
been repeatedly reiterated that the power must be exercised
reasonably and in good faith to effectuate the purpose. And in this
context "in good faith" means "for legitimate reasons"! Where
power is exercised for extraneous or irrelevant considerations or
reasons, it is unquestionably a colourable exercise of power or
fraud on power and the exercise of power is vitiated. If the power
to acquire land is to be exercised, it must be exercised bona fide
for the statutory purpose and for none other. If it is exercised for
an extraneous, irrelevant or non-germane consideration, the
acquiring authority can be charged with legal mala fides. In such
a situation there is no question of any personal ill-will or
motive."(emphasis supplied)
(1985) 3 SCC 1
::83:: MSR,J & TVK,J
wp_35061_1997&batch
232. In Uddar Gagan Properties Ltd. v. Sant Singh15, the concept
of colourable exercise of power of acquisition by the State is
explained in the following terms:
"23. It is well settled that use of power for a purpose different
from the one for which power is conferred is colourable exercise of
power. Statutory and public power is trust and the authority on
whom such power is conferred is accountable for its exercise.
Fraud on power voids the action of the authority [Gurdial Singh
(9 supra) (Greater Noida Industrial Devlopment Authority v.
Devender Kumar16]. Mala fides can be inferred from undisputed
facts even without naming a particular officer and even without
positive evidence17. In the present case, abuse of power in dealing
with the matter by the functionaries of the State is more than clear
as rightly found by the High Court. Challenge to acquisition may
not be confined to those who have not accepted the amount of
compensation or consideration. Once such order/transaction is
vitiated there could be no estoppel on the ground that
compensation/consideration has been received, as the land loser
has little choice in the face of acquisition (13 supra).
24. Acquisition of land is a serious matter. It may result in
depriving a tenure-holder not only of his property but also his
profession, livelihood and social security. Even plight of investors
in plots/flats in land covered by acquisition or litigation cannot be
a ground to ignore illegal actions of depriving a farmer of his
land. As already observed, and is settled law, the State's power of
compulsory acquisition cannot be used to enable a private entity to
acquire title even if private person offers more compensation than
the State..."( emphasis supplied)
233. Similar actions of issuing notifications for acquisition issued by
the State after land grabbers lost a case in the Special Court under the
(2016) 11 SCC 378
(2011) 12 SCC 375
State of Punjab v. Ramjilal ... (1970) 3 SCC 602;
Express Newpapers (P) Ltd v. Union of India ... (1986) 1 SCC 133
::84:: MSR,J & TVK,J
wp_35061_1997&batch
A.P.Land Grabbing (Prohibition) Act, 1982 have been, in the past,
held to be colourable exercise of power and in bad faith by the
A.P.High Court.
234. In Ch.Suryanarayana Murthy (2 Supra), a learned Single
Judge of the A.P.High Court considered an identical issue. In that case
the land owners had filed O.P.No.69 and 92 of 1986 against certain
persons before the Special Tribunal constituted under the A.P.Land
Grabbing (Prohibition) Act, 1982 and the said O.Ps were decreed on
26.6.1989. Before that event, the Government of Andhra Pradesh had
issued notifications on 12.5.1986 and 28.7.1986 under the A.P. Slum
Improvement (Acquisition of Land) Act, 1956. The Court rejected the
plea of the State that the notifications under the Act ought to be
sustained observing as under:
"It is incomprehensible to countenance the argument that despite the
said order of eviction, which has been passed against the slum
dwellers for whose benefit the Impugned notifications have been
issued, the encroachment should be regularised under the guise of
the impugned notifications issued under Act. This action of the
respondents to supersede the judicial decision by an executive action
thereby scuttling the very judicial decision, is impermissible. No.
Law, impliedly or expressly, authorise the respondents to take such a
course. Even if any law enacts such a provision, the same would be
afford to judicial decision rendered and would be void and
unconstitutional. It is not as if a judicial decision which is rendered
is rendered inexecutable by a legislative act of amendment viewing
the basis of the judgment. That being not so, the petitioners cannot
be deprived of their right over the lands in question which they have
purchased by a valid means of registered conveyance and for
valuable consideration. If the impugned notifications are held to be
valid, it only means that the encroachers can intrude into
::85:: MSR,J & TVK,J
wp_35061_1997&batch
anybody's land and by catching hold of executives, can get their
encroachment validated under the guise and rouse of terming it as
a 'slum' and by declaring so in colourable exercise of the powers
under the A.P. Slum Improvement (Land Acquisition) Act, 1956
and then deprive the lawful owners of their valuable rights.
Permitting the same to be done in that fashion, it only results the
approval of criminal and illegal acts of encroachment which are
condemned under A.P. Land Grabbing (Prohibition) Act, 1982,
which was enacted for these special purposes of removing of the acts
of land grabbing, apart from the common law remedy, keeping in
view of the experience of trauma and hardship being suffered by the
lawful owners of the Immovable properties, particularly vacant
lands, which are vulnerable for such a flash land grabbing, some
times even over night by putting some huts, then slowly transforming
the same into semi-houses and houses. Approval of such an action
does amount to deprivation of the persons with authority of law. On
the other hand, it results, in giving a key of the house to a thief,
permitting him to rob the house. May be, when A.P. Slum
Improvement (Land Acquisition) Act, 1956 was enacted, the
legislature did not anticipate this kind of strategy to be adopted by
the unsocial elements to grab the land, put up the slums and then
claim the protection under the above Act for regularisation.
Scanning through the provisions of the Act, leaves one, in no doubt
that the said Act do not intend to permit the land grabbers turning
them into lawful possessors, under the guise of the notifications
issued under Sections 3(1) and 3(2) of the Act and certainly not after
a judicial verdict that the slum dwellers are land grabbers. In any
event of the matter, as the slum dwellers have suffered a decree for
eviction, having been held that they are land grabbers and the said
order of eviction having become final, supersedes the impugned
notifications and the said orders of, eviction can be executed by the
petitioners by taking recourse to the remedies available under law.
The impugned notifications are thus set-aside for the reasons stated
supra."( emphasis supplied)
::86:: MSR,J & TVK,J
wp_35061_1997&batch
235. In Revenue Divisional officer v. Registrar, Special Court
under the A.P.Land Grabbing (Prohibition) Act, 198218 also after
the Special Court had rendered a judgment on 30-12-1994 declaring
certain persons as land grabbers and the said order was also confirmed
by the High Court in a Writ Petition filed by the land grabbers which
was dismissed on 16-10-1995, the Revenue Divisional Order, like in
the instant case did nothing for 3 years to execute the said order. Then
action under the A.P.Slum Improvement (Acquisition of Land) Act,
1956 was first initiated, then dropped and then at the instance of the
Commissioner of the Municipal Corporation of Hyderabad, the State
issued notification on 1.7.1997 under Sec. 4(1) of the Land
Acquisition Act,1894 to acquire the land for the benefit of house plots
for the land grabbers. The Division Bench struck down the said
notification and held:
"Accordingly, the notification issued under Section 3(1) of the A.P.
Slum Improvement Act was de-notified. These circumstances are
innate and emerging clearly from the matrix in the case. Contrary
to this recommendation of the Municipal Commissioner, Section
4(1) notification was issued under the provisions of the Land
Acquisition Act. No material has been placed before this Court by
the respondent-State that there has been no suitable alternative
accommodation anywhere in the city. No plea even has been taken
inter alia in the counter-affidavit filed by the Revenue Divisional
Officer that no suitable alternative accommodation is available.
When once the Municipal Commissioner, the appropriate authority
under the A.P. Slum Improvement Act, after having obtained the
legal opinion from the Standing Counsel recommended for
MANU/AP/0722/2006 (DB)
::87:: MSR,J & TVK,J
wp_35061_1997&batch
dropping of the proceedings under the said Act, to avoid further
Court litigations, without making any effort to find suitable
Government land for providing alternative accommodation to the
slum dwellers by issuing pattas to them, the proceedings under the
Land Acquisition Act should not have been initiated showing it as
a public purpose. The authorities cannot plead any ignorance of
the proceedings under the A.P. Slum (Improvement) Act since they
pertain to the land in dispute and indeed it is not their case.
13. It is apt in this context to consider the judgment of the Apex
Court in . Gurdial Singh (9 supra), wherein the Apex Court held
thus:
"Bad faith, which invalidates the exercise of power, is the
attainment of ends beyond the sanctioned purposes of power by
simulation or pretension of gaining a legitimate goal. Court calls it
a colourable exercise of power. The action is bad where the true
object is to reach an end different from the one for which the
power is entrusted, goaded by extraneous considerations, good or
bad, but irrelevant to the entrustment.
Fraud on power voids the order if it is not exercised bona fide
for the end designed. Fraud in this context is not equal to moral
turpitude and embraces all cases in which the action impugned is
to effect some object which is beyond the purpose and intent of the
power, whether this be malice laden or even benign. If the purpose
is corrupt the resultant act is bad. If considerations, foreign to the
scope of the power or extraneous to the statute, enter the verdict or
impel the action, mala fides or fraud on power vitiates the
acquisition or other official act.
14. In Para 16 the Apex Court held further thus:
"Compulsory taking of a man's property is a serious matter
and the smaller the man the more serious the matter. Hearing him
before depriving him is both reasonable and preemptive of
arbitrariness, and denial of this administrative fairness is
constitutional anathema except for good reasons."
::88:: MSR,J & TVK,J
wp_35061_1997&batch
15. No doubt, having regard to the fact situation obtaining in that
case the Apex Court was of the clear view that the element of
personal vendetta fueling the politics of compulsory land
acquisition could be seen from the facts discernible and it becomes
a question of fact whether such a fraud is discernible or not.
16. In Para 9 the Apex Court held thus:
The question, then, is what is mala fides in the jurisprudence of
power? Legal malice is gibberish unless juristic clarity keeps it
separate from the popular concept of personal vice. Pithily put,
bad faith which invalidates the exercise of power - sometimes
called colourable exercise or fraud on power and oftentimes
overlaps motives, passions and satisfactions - is the attainment of
ends beyond the sanctioned purposes of power by simulation or
pretension of gaining a legitimate goal.
17. It is obvious, that the action taken on the part of the State must
show the juristic clarity that the action is not beset with any such
bad faith or malice. The authority should have exercised more
consideration and restraint before deciding to issue Section 4(1)
notification under the Land Acquisition Act, when the action
initiated earlier under the A.P. Slums Improvement Act was
proposed to be dropped so as to avoid further Court litigations and
in the best interest of the slum dwellers to find alternative
Government land and issue pattas to them in respect of those
lands. It is also not discernable from the record about any such
action having been taken preceding the decision to issue Section
4(1) notification. It is obvious that it is a case of total in
application of mind by the concerned authorities to the matrix of
the case, and events that transpired earlier to the decision taken in
this case to acquire the land in dispute on the premise of a public
purpose. Without making any semblance of effort in that direction;
since it has not been shown before this Court by affidavit or
otherwise; the decision to initiate proceedings under the Land
Acquisition Act cannot, in our considered view, be free from the
allegation of bad faith. The above circumstance coupled with the
background history of the case would in our considered view lead
to an inescapable conclusion that the action on the part of the
Government in having decided to acquire the land in dispute in
::89:: MSR,J & TVK,J
wp_35061_1997&batch
utter ignorance of the proceedings initiated earlier under the A.P.
Slums improvement Act and the letter addressed by the
Commissioner to the Collector under the provisions of the A.P.
Land Acquisition Act is nothing short of a colourable exercise of
power.
As discussed hereinabove, having regard to various circumstances
emanating from the record, the action on the part of the State is
colourable. Therefore, for the reasons hereinabove discussed, the
Section 4(1) notification shall have to be quashed."
236. In our considered opinion, the action of the State of A.P. of
issuing the notification dt.12.12.1991 under Sec.3(1) of the A.P.Slum
Improvement (Acquisition of Lands) Act, 1956, and issuing the
notification dt.20.3.1992 and notification dt.30.6.1992 under Sec.3(1)
of the A.P.Slum Improvement (Acquisition of Lands) Act, 1956 was
in bad faith and a colourable exercise of power intended to supersede
the judgment dt.15.9.1989 in LGC No.2 of 1988, and to help the land
grabbers who occupied the Society's land, under the political and
illegal influence of the then MLA and later Minister Sri P.Janardhan
Reddy. On this ground also the said notifications under Sec.3(1) and
Sec. 3(2) of the A.P.Slum Improvement (Acquisition of Lands) Act,
1956 are unsustainable and are accordingly set aside.
Whether the Society and it's members cannot be granted relief in these Writ
Petitions on account of their laches and delay in filing the Writ Petitions?
237. The Special Government Pleader attached to the Office of the
Advocate General appearing for the official respondents including the
State of Telangana strongly urged the Court to deny relief to the
Society and the other petitioners, who are it's members, on the ground
that the Society filed W.P.No.35061 of 1997 not to grant pattas to the
::90:: MSR,J & TVK,J
wp_35061_1997&batch
land grabbers only on 27.12.1997, that it's members filed (a)
W.P.14771 of 2003 on 15.7.2003 questioning the initiation of
proceedings under the A.P. Slum improvement (Acquisition of lands)
Act,1956 and issuance of Gazette notifications dt.20.3.1992 and
30.6.1992 and for handing over of the land, and (b) W.P.9262 of 2006
on 24.4.2006 challenging the notifications issued under the A.P. Slum
improvement (Acquisition of lands) Act,1956 and for handing over of
the land.
238. We have already held that the Society was not issued notice by
the State Government /Commissioner of the Municipal Corporation of
Hyderabad while issuing these notifications even though they were
aware that the Society was the owner of the land, that the notifications
dt.12.12.1991 and 20.3.1992 had several other defects such as the
Survey Numbers and Town Survey Numbers, Village name not being
mentioned, that they were issued in bad faith and in colorable exercise
of power under the A.P. Slum Improvement (Acquisition of Lands)
Act, 1956 to supersede the judgment dt.15.9.1989 in LGC No. 2 of
1988 of the Special Court constituted under the A.P. Land Grabbing
(Prohibition) Act, 1982, contrary to the policy of the said Act to
protect innocent land owners from the land mafia. On account of non-
issuance of notice to the Society which is mandatory to be issued
under the proviso to sub-Section (2) of Sec.3 of the A.P.Slum
Improvement (Acquisition of Lands) Act, 1956, the said notifications
::91:: MSR,J & TVK,J
wp_35061_1997&batch
are null and void ab initio as per the decision in Binapani Dei
(7 Supra).
239. An executive action which is null and void abinitio does not
require any challenge. It had no existence since it's inception and it is
therefore unnecessary to challenge it.
240. Assuming for the sake of argument that even such notifications
are required to be challenged, we do not think that the plea of laches
setup by the State is sustainable in the facts and circumstances of the
case. In fact, it would be a travesty of justice to deny relief to the
Society or it's members on that basis.
241. In Uddar Gagan Properties Ltd. (15 Supra) , the Supreme
Court declared that there is no jurisdictional bar to entertain a Writ
Petition on ground of laches and that it is only a rule of practice. It
held that if there is abuse of law or fraud, such jurisdiction can be
exercised and the executive action can be quashed. It declared:
"22. While it is true that a belated petition cannot be entertained
under Article 226 of the Constitution, it is well settled that this is only a
rule of practice based on sound and proper exercise of discretion and
not a jurisdictional bar. Exercise of discretion to quash an illegal action
based on fraud or abuse of law even belatedly may not be liable to be
interfered with under Article 136 of the Constitution."
242. Similar view was also expressed in Ajit Kr. Bhuyan v.
Debajit Das19 in the following terms by the Supreme Court: :
(2019) 12 SCC 275
::92:: MSR,J & TVK,J
wp_35061_1997&batch
27. Having regard to the circumstances in which Respondent 1 was
given promotion to the post of Executive Engineer by creating an ex-
cadre post and thereafter the manner in which he was encadred to the
said post by stretching the number of vacancies against the record,
speaks volumes about the manner in which undue favour was shown to
Respondent 1. One has to keep in mind that at that time he was working
as Officer on Special Duty to the Chief Minister. These facts reflect
clear manipulation of the system at various stages to give out of turn
promotion to Respondent 1 by bestowing undue favour. With such
"flyover promotions", Respondent 1 parachuted from Assistant
Executive Engineer to Superintending Engineer by bypassing many
senior colleagues in the cadre of Assistant Executive Engineer who are
still stagnating in the same cadre. When this factual position emerged on
record and was duly approved by the Division Bench as well, we are of
the opinion that the writ petition could not be dismissed on the ground of
delay and laches. In fact, the Division Bench has erred in invoking this
principle by dubbing the entire exercise as a bona fide error. What
happened cannot be termed as "bona fide". It was a clear case of
favouritism shown to Respondent 1 and the actions were contrary to the
Rules.
28. That apart, there is one more reason for coming to the
conclusion that the Division Bench of the High Court was in error in
saving Respondent 1 on the premise that the writ petitions suffered from
delay and laches. In fact, the Association had submitted a representation
to the then Chief Minister. Going by the nature of allegations, the Chief
Minister rightly acted thereupon and referred the matter to a committee
which, after examining the matter, had also given its report stating that
the promotion of Respondent 1 was against the Rules. This provides
reasonable explanation for delay, if any.
29. We are of the opinion that it was virtually a case of fraud, at
least on three counts. First, by creating ex-cadre post of Executive
Engineer only for Respondent 1 and giving him that post when he was
much junior to many others. Second, encadrement of Respondent 1 as
Executive Engineer by showing that there were thirteen posts when, in
fact, there were only ten posts of Executive Engineer on that date. This
was done obviously with the purpose of accommodating him. Third, the
promotion was given when Respondent 1 was not even eligible as per
Rules as he had not put in minimum service of five years. Fraud vitiates
::93:: MSR,J & TVK,J
wp_35061_1997&batch
every action and cannot be kept under the carpet on the ground that the
action challenged was belated, more so when there is a reasonable
explanation for such delay."( emphasis supplied)
243. In view of our finding in the instant case, that there is bad faith
and abuse of law on the part of the State Government and it's officials
in issuing the notifications under the A.P.Slum Improvement
(Acquisition of Land) Act, 1956, the plea of laches raised by the State,
cannot be sustained.
244. In Ramchand and others v. Union of India20, the Supreme
Court held that the question of delay in invoking the writ jurisdiction
of the High Court under Art.226 of Constitution of India has to be
considered along with the inaction on the part of the authorities, who
had to perform their statutory duties. It held:
"16. ....Can the statutory authority take a plea that although it has
not performed its duty within a reasonable time, but it is of no
consequence because the person, who has been wronged or deprived
of his right, has also not invoked the jurisdiction of the High Court or
of this Court for a suitable writ or direction to grant the relief
considered appropriate in the circumstances? The authorities are
enjoined by the statute concerned to perform their duties within a
reasonable time, and as such they are answerable to the Court why
such duties have not been performed by them, which has caused injury
to claimants...."
245. The State and its Officers have from 12.3.1990 (when Notice in
Form V was issued by the Revenue Divisional Officer under Rule
15(2) of the rules framed under the A.P. Land Grabbing (Prohibition)
(1994) 1 SCC 44
::94:: MSR,J & TVK,J
wp_35061_1997&batch
Act, 1982) till 1.6.2016 (when G.O.Ms.No.113 was issued by the
State of Telangana repealing the A.P. Land Grabbing (Prohibition)
Act, 1982) deliberately evaded to implement the judgment
dt.15.9.1989 in LGC No. 2 of 1988. Further, in response to the Notice
dt.20.08.1992 issued by the Society, the respondent sought to give an
impression to the Committee Members of the Society that the land of
Acs.28.07 gts. under acquisition is different from that of the society
land as the boundaries are different. But the said impression given to
the Society by the respondent is clearly misleading, since the
Committee constituted by the Government of A.P., pursuant to the
orders dt.04.10.2008 of this Court in W.P.No.35061 of 1997 gave a
report dt.19.06.2009 that the notified area of Acs.28.07 gts. is part of
Acs.38.00 and 2121 Sq.yds. belonging to the Society. Thus, the State
which was duty-bound to act in an impartial and unbiased manner, but
it resorted to misrepresentation.
246. Therefore, it is not open to the State to raise the plea of laches.
247. Recently in Vidya Devi vs. State of Himachal Pradesh and
others21, the Supreme Court set aside the order of the High Court in
refusing to entertain a Writ Petition filed in 2010 in respect of forcible
appropriation by the State of the property of the appellant 1967-68
without initiating any process of acquisition and allowed the SLP
holding:
(2020) 2 SCC 569
::95:: MSR,J & TVK,J
wp_35061_1997&batch
"2.9. In a democratic polity governed by the rule of law, the
State could not have deprived a citizen of their property without
the sanction of law. Reliance is placed on the judgment of this
Court in Tukaram Kana Joshi v. MIDC22wherein it was held that
the State must comply with the procedure for acquisition,
requisition, or any other permissible statutory mode. The State
being a welfare State governed by the rule of law cannot arrogate
to itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar23
held that the right to property is now considered to be not only a
constitutional or statutory right, but also a human right. Human
rights have been considered in the realm of individual rights such
as right to shelter, livelihood, health, employment, etc. Human
rights have gained a multi-faceted dimension.
.........
12.12. The contention advanced by the State of delay and
laches of the appellant in moving the Court is also liable to be
rejected. Delay and laches cannot be raised in a case of a
continuing cause of action, or if the circumstances shock the
judicial conscience of the Court. Condonation of delay is a matter
of judicial discretion, which must be exercised judiciously and
reasonably in the facts and circumstances of a case. It will depend
upon the breach of fundamental rights, and the remedy claimed,
and when and how the delay arose. There is no period of limitation
prescribed for the courts to exercise their constitutional
jurisdiction to do substantial justice.
12.13. In a case where the demand for justice is so compelling,
a constitutional court would exercise its jurisdiction with a view to
promote justice, and not defeat it.
12.14. In Tukaram Kana Joshi v. MIDC, this Court while
dealing with a similar fact situation, held as follows: (SCC p. 359,
para 11)
"11. There are authorities which state that delay and laches
extinguish the right to put forth a claim. Most of these authorities
pertain to service jurisprudence, grant of compensation for a
(2013) 1 SCC 353
(2011) 10 SCC 404
::96:: MSR,J & TVK,J
wp_35061_1997&batch
wrong done to them decades ago, recovery of statutory dues, claim
for educational facilities and other categories of similar cases, etc.
Though, it is true that there are a few authorities that lay down
that delay and laches debar a citizen from seeking remedy, even if
his fundamental right has been violated, under Article 32 or 226 of
the Constitution, the case at hand deals with a different scenario
altogether. The functionaries of the State took over possession of
the land belonging to the appellants without any sanction of law.
The appellants had asked repeatedly for grant of the benefit of
compensation. The State must either comply with the procedure
laid down for acquisition, or requisition, or any other permissible
statutory mode."
(emphasis supplied)
13. In the present case, the appellant being an illiterate person,
who is a widow coming from a rural area has been deprived of her
private property by the State without resorting to the procedure
prescribed by law. The appellant has been divested of her right to
property without being paid any compensation whatsoever for over
half a century. The cause of action in the present case is a
continuing one, since the appellant was compulsorily expropriated
of her property in 1967 without legal sanction or following due
process of law. The present case is one where the demand for
justice is so compelling since the State has admitted that the land
was taken over without initiating acquisition proceedings, or any
procedure known to law. We exercise our extraordinary
jurisdiction under Articles 136 and 142 of the Constitution, and
direct the State to pay compensation to the appellant." ( emphasis
supplied)
248. In the instant case also, having regard to the circumstances set
out in para 238 supra, since the State has deprived the Society of it's
property without following due process of law and without paying any
compensation in bad faith, and this certainly shocks the judicial
conscience of the Court, we are of the view that the demand for justice
is so compelling that this Court, exercising power under the
::97:: MSR,J & TVK,J
wp_35061_1997&batch
Constitution of India, should reject the plea of laches to promote
justice.
249. Accepting the plea of laches raised by the State would amount
to allowing it to take advantage of it's own wrong and would defeat
justice.
250. In Kusheshwar Prasad Singh v. State of Bihar24, the
Supreme Court reiterated this basic principle of law in the following
terms:
"3. The appellant is also right in contending before this Court
that the power under Section 32-B of the Act to initiate fresh
proceedings could not have been exercised. Admittedly, Section
32-B came on the statute book by Bihar Act 55 of 1982. The case
of the appellant was over much prior to the amendment of the Act
and insertion of Section 32-B. The appellant, therefore, is right in
contending that the authorities cannot be allowed to take undue
advantage of their own default in failure to act in accordance with
law and initiate fresh proceedings.
14. In this connection, our attention has been invited by the
learned counsel for the appellant to a decision of this Court in
Mrutunjay Pani v. Narmada Bala Sasmal25 wherein it was held
by this Court that where an obligation is cast on a party and he
commits a breach of such obligation, he cannot be permitted to
take advantage of such situation. This is based on the Latin maxim
commodum ex injuria sua nemo habere debet (no party can take
undue advantage of his own wrong).
15. In Union of India v. Major General Madan Lal Yadav26
the accused army personnel himself was responsible for delay as
he escaped from detention. Then he raised an objection against
initiation of proceedings on the ground that such proceedings
(2007) 11 SCC 447, at page 451
AIR 1961 SC 1353
(1996) 4 SCC 127
::98:: MSR,J & TVK,J
wp_35061_1997&batch
ought to have been initiated within six months under the Army Act,
1950. Referring to the above maxim, this Court held that the
accused could not take undue advantage of his own wrong.
Considering the relevant provisions of the Act, the Court held that
presence of the accused was an essential condition for the
commencement of trial and when the accused did not make himself
available, he could not be allowed to raise a contention that
proceedings were time-barred. This Court (at SCC p. 142, para
28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein
it was stated:
"It is a maxim of law, recognised and established, that no man
shall take advantage of his own wrong; and this maxim, which is
based on elementary principles, is fully recognised in courts of law
and of equity, and, indeed, admits of illustration from every branch
of legal procedure."
16. It is settled principle of law that a man cannot be permitted
to take undue and unfair advantage of his own wrong to gain
favourable interpretation of law. It is sound principle that he who
prevents a thing from being done shall not avail himself of the non-
performance he has occasioned. To put it differently, "a
wrongdoer ought not to be permitted to make a profit out of his
own wrong". ( emphasis supplied)
251. In State of Maharashtra v. Digamber27 cited by the Special
Government Pleader, the Supreme Court had taken the view that for
deprivation of land of a farmer in 1971-72, the High Court could not
have entertained a Writ Petition in 1991 and granted relief. The court
came to the conclusion in that case that such delay indicates that his
land was not taken at all, or if it had been taken, it could not have been
taken without his consent, or if it was taken against his consent, he
had acquiesced in such taking and waived his right to take
compensation for it.
(1995) 4 SCC 683
::99:: MSR,J & TVK,J
wp_35061_1997&batch
None of these circumstances exist in the instant case. There was
not even a notice issued to the Society by the State at the time of
issuing notifications under the A.P.Slum Improvement (Acquisition of
Lands) Act, 1956, and the correspondence between the Society with
the District Collector vide Letters dt.2.7.1992 and 20.8.1992, with the
Commissioner of the Municipal Corporation , Hyderabad vide Letter
dt.20.8.1992, with the Hon'ble Minister for Labour and Employment
& Housing vide Letter dt.15.5.1993, and with the Hon'ble Chief
Minister through the Prl. Secretary, Municipal Administration and
Urban Development vide Letter dt.14.10.2004 etc., and the filing of
the W.P.No.35061 of 1997 and W.P.No.14771 of 2003 show that the
Society had not acquiesced in the taking of it's property. As an
alternative plea only it sought the allotment of alternative land but it's
primary plea was to restore possession of it's land. Digamber
(27 Supra) was also not one where there was bad faith/ colourable
exercise of power, like the instant case. The decision in Digamber
(27 Supra) is therefore clearly distinguishable.
252. In Urban Improvement Trust, Bikaner vs. Mohan Lal28 the
Supreme Court has held that statutory authorities have to discharge
functions in public interest, that they should act as responsible
litigants; and that they cannot raise frivolous and unjust objections by
behaving like private litigants. It criticized the attitude of Government
officials in deliberately delaying taking crucial decisions affecting
(2010) 1 SCC 512
::100:: MSR,J & TVK,J
wp_35061_1997&batch
citizens and then contesting the same on technical pleas without
justification. It declared:
"5. ... ... Statutory authorities exist to discharge statutory functions
in public interest. They should be responsible litigants. They cannot
raise frivolous and unjust objections, nor act in a callous and high-
handed manner. They can not behave like some private litigants with
profiteering motives. Nor can they resort to unjust enrichment. They are
expected to show remorse or regret when their officers act negligently or
in an overbearing manner. When glaring wrong acts by their officers
are brought to their notice, for which there is no explanation or excuse,
the least that is expected is restitution/restoration to the extent possible
with appropriate compensation. Their harsh attitude in regard to
genuine grievances of the public and their indulgence in unwarranted
litigation requires to be corrected.
6. This Court has repeatedly expressed the view that Governments
and statutory authorities should be model or ideal litigants and should
not put forth false, frivolous, vexatious, technical (but unjust)
contentions to obstruct the path of justice. We may refer to some of the
decisions in this behalf.
7. In Dilbagh Rai Jarry v. Union of India29 this Court extracted
with approval the following statement [from an earlier decision of the
Kerala High Court (P.P. Abubacker case30):
"25. ... '5. ... The State, under our Constitution, undertakes
economic activities in a vast and widening public sector and inevitably
gets involved in disputes with private individuals. But it must be
remembered that the State is no ordinary party trying to win a case
against one of its own citizens by hook or by crook; for the State's
interest is to meet honest claims, vindicate a substantial defence and
never to score a technical point or overreach a weaker party to avoid a
just liability or secure an unfair advantage, simply because legal devices
provide such an opportunity. The State is a virtuous litigant and looks
with unconcern on immoral forensic successes so that if on the merits
the case is weak, Government shows a willingness to settle the dispute
regardless of prestige and other lesser motivations which move private
parties to fight in court. The layout on litigation costs and executive time
by the State and its agencies is so staggering these days because of the
(1974) 3 SCC 554
AIR 1972 KERALA 103
::101:: MSR,J & TVK,J
wp_35061_1997&batch
large amount of litigation in which it is involved that a positive and
wholesome policy of cutting back on the volume of law suits by the twin
methods of not being tempted into forensic showdowns where a
reasonable adjustment is feasible and ever offering to extinguish a
pending proceeding on just terms, giving the legal mentors of
Government some initiative and authority in this behalf. I am not
indulging in any judicial homily but only echoing the dynamic national
policy on State litigation evolved at a Conference of Law Ministers of
India way back in 1957.' "
8. In Madras Port Trust v. Hymanshu International31 this Court
held: (SCC p. 177, para 2)
"2. ... It is high time that Governments and public authorities adopt
the practice of not relying upon technical pleas for the purpose of
defeating legitimate claims of citizens and do what is fair and just to the
citizens. Of course, if a Government or a public authority takes up a
technical plea, the Court has to decide it and if the plea is well founded,
it has to be upheld by the court, but what we feel is that such a plea
should not ordinarily be taken up by a Government or a public
authority, unless of course the claim is not well founded and by reason
of delay in filing it, the evidence for the purpose of resisting such a claim
has become unavailable."
9. In a three-Judge Bench judgment of Bhag Singh v. UT of
Chandigarh32 this Court held: (SCC p. 741, para 3)
"3. ... The State Government must do what is fair and just to the
citizen and should not, as far as possible, except in cases where tax or
revenue is received or recovered without protest or where the State
Government would otherwise be irretrievably be prejudiced, take up a
technical plea to defeat the legitimate and just claim of the citizen."
10. Unwarranted litigation by Governments and statutory
authorities basically stems from the two general baseless assumptions
by their officers. They are:
(i) All claims against the Government/statutory authorities should be
viewed as illegal and should be resisted and fought up to the highest
court of the land.
1979 (4) SCC 176
1985 (3) SCC 737
::102:: MSR,J & TVK,J
wp_35061_1997&batch
(ii) If taking a decision on an issue could be avoided, then it is
prudent not to decide the issue and let the aggrieved party approach the
court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders
against them, is not the policy of Governments or statutory authorities,
but is attributable to some officers who are responsible for taking
decisions and/or officers in charge of litigation. Their reluctance arises
from an instinctive tendency to protect themselves against any future
accusations of wrong decision-making, or worse, of improper motives
for any decision-making. Unless their insecurity and fear is addressed,
officers will continue to pass on the responsibility of decision-making to
courts and tribunals."(emphasis supplied)
253. These observations aptly apply to the respondents in these
cases.
254. We shall now consider the other decisions cited by the Special
Government Pleader i.e., Prabodh Verma and others v. State of
U.P. and others33, New Bhoiguda Mosque and Graveyard
Committee v. District Collector, Hyderabad34 and Sultan
Moinuddin died per LRs v. The Special Court under the
A.P.Land Grabbing (Prohibition) Act, 198235 to perused us to deny
relief to the Society and other petitioners.
255. The decision in Prabodh Verma (33 supra) cited by the
Special Government Pleader (para 28 p.273) deals with the non-
joinder of necessary parties. He contended that the Society and the
petitioners should have impleaded some of the land grabbers at least,
(1984) 4 SCC 251
(2002) 1 ALD 790 (DB)
(2018) 3 ALT 660(DB)
::103:: MSR,J & TVK,J
wp_35061_1997&batch
and in the absence of such necessary parties, all the Writs should be
dismissed.
This is a hyper-technical plea because the land grabbers were
parties in the LGC No.2 of 1988 decided by the Special Court and had
not challenged the said order. Even if they had been impleaded in the
Writ Petitions they cannot claim any equities having regard to the
findings in the LGC given by the Special Court against them and the
said parties having allowed the order of the Special Court to attain
finality in absence of any challenge thereto. On the other hand,
realizing the lack of strength of their case, the land grabbers, with the
active support of the MLA and their Chief Patron, chose to adopt the
route of getting the land notified as 'slum' under the A.P. Slum
Improvement Act, 1956 They also would not have any material which
the State can rely upon to support it's arbitrary action in issuing the
notifications under the A.P.Slum Improvement (Acquisition of Lands)
Act, 1956, with the support of Executive. In any event, having regard
to the relief which we propose to grant in these cases, which will be
discussed below, their non-joinder does not make any material
difference to the result in these cases.
256. Next decision New Bhoiguda Mosque and Grave Yard
Committee (34 supra) is one where a Division Bench of the A.P.High
Court had upheld an order of a learned Single Judge dismissing a Writ
Petition challenging a notification issued under Sec. 3(1) of the
A.P.Slum Improvement (Acquisition of Land) Act, 1956. In that case
::104:: MSR,J & TVK,J
wp_35061_1997&batch
there was service found to have been affected by 'affixture at the site',
and also by way of publication in 2 newspapers.
In the instant case, notice was issued on 20.3.1992 not to the
Society, which was the real owner, but to it's vendor, who had no
interest in the land after 1964. There is no plea of 'affixture of notice
on the site' or that it was published in any newspapers. So this
decision cannot help the State either.
257. In Sultan Mohinuddin (34 supra), for executing an order
passed in 1997 by a Special Court under the A.P.Land Grabbing
(Prohibition) Act, 1982, the Revenue Divisional Officer, the executing
authority of orders of eviction under Rule 15 of the rules framed under
the Act, issued a notice dt.21-12-2010 to the Decree holder's counsel
to arrange 40 JCBs, 1000 Labour for removing debris, 100 trucks and
to bear the cost of deployment of police personnel. The A.P.High
Court set aside the said notice observing that the enormity of efforts to
flush out the illegal occupants cannot be a constraint in effectuating
the judicial order and would not absolve the State of it's
responsibility to carry out the judicial mandate in letter and spirit. It
held that the State had abdicated it's responsibility which is wholly
unjustifiable and left it open to the decree holder to take recourse to
legal remedies to recover possession.
We fail to see how this decision can be construed as beneficial
to the State because it is very critical of it's abdication of
::105:: MSR,J & TVK,J
wp_35061_1997&batch
responsibility to implement the orders of the Special Court under the
A.P.Land Grabbing (Prohibition) Act, 1982.
258. So we reject the plea of the State that the Society and it's
members should be rejected relief in these Writ Petitions on account
of their laches and delay in filing the Writ Petitions.
What is the relief to be granted to petitioners:
259. For the above reasons, we hold that the notifications
dt.12.12.1991, 20.3.1992 and 30.6.1992 issued under the A.P.Slum
Improvement (Acquisition of Lands) Act, 1956 are null and void and
are declared as such.
260. The judgment dt.15.9.1989 in LGC No.2 of 1988 is subsisting
as on date and is require to be executed. The State's official, the
Revenue Divisional Officer, and the State machinery, which was to
execute the said judgment, has been held to have succumbed to the
political influence and pressure of the MLA P.Janardhan Reddy and
the land grabbers and they have abdicated their responsibility to
implement it for 32 years. The area of Ac.38, 2121 sq.yds continues to
be encroached by the land grabbers even today and there are now
hundreds of such encroachers and many more structures have come
up in the land. There are serious practical difficulties in executing the
said judgment at this point of time.
261. Since, the deliberate and illegal action of the State and it's
employees and Officers has made difficult , the implementation of the
::106:: MSR,J & TVK,J
wp_35061_1997&batch
judgment dt.15.9.1989 in LGC NO.2 of 1988, it is the State which has
to offer restitution to the Society.
262. In Rameshwar v. State of Haryana36, the Supreme Court
declared as a matter of principle that wherever there has been fraud on
power, the duty of the Court is not only to set aside such exercise of
power but to see that there is no unjust enrichment directly or
indirectly as a result thereof and there is full and substantial
restoration. It declared:
"39. Wherever there has been fraud on power, the duty of the
Court is not only to set aside such exercise of power but to see that
there is no unjust enrichment directly or indirectly as a result thereof
and there is full and substantial restoration. Going by the principles
laid down by this Court in Indian Council for Enviro-Legal Action37
unjust retention of benefit would be completely against the
fundamental principles of justice, equity and good conscience. It was
observed therein that so long as the deprivation of a party has not
been fully compensated for, injustice to that extent continues. Having
found that there was a clear case of fraud on power as a result of
which unnatural and unreasonable gains have been derived by certain
builders/private entities, we consider it our duty to grant full
restitution."
(emphasis supplied)
263. In Kavita Trehan v. Balsara Hygiene Products Ltd.38, the
Supreme Court had declared that the jurisdiction to make restitution is
inherent in every court and will be exercised whenever the justice of
the case demands. It declared :
(2018) 6 SCC 215, at page 281
(2011) 8 SCC 161
(1994) 5 SCC 380, at page 390
::107:: MSR,J & TVK,J
wp_35061_1997&batch
" 22. The jurisdiction to make restitution is inherent in every
court and will be exercised whenever the justice of the case
demands. It will be exercised under inherent powers where the case
did not strictly fall within the ambit of Section 144. Section 144
opens with the words : "Where and insofar as a decree or an order
is varied or reversed in any appeal, revision or other proceeding or
is set aside or modified in any suit instituted for the purpose, ...."
The instant case may not strictly fall within the terms of Section 144;
but the aggrieved party in such a case can appeal to the larger and
general powers of restitution inherent in every court."(Emphasis
supplied)
264. This principle has bee applied recently in the Ramjanma
Bhoomi-Babri Masjid litigation decided by the Supreme Court in
M.Siddiq v. Suresh Das39 where the Court invoked the principle of
restitution and directed the Central Government or the U.P. State
Government to allot Ac.5.00 of land to the Central Sunni Wakf Board
for unlawful destruction of the Babri Masjid for a mosque to be built
therein holding:
"1239. The area of the composite site admeasures about 1500
sq yd. While determining the area of land to be allotted, it is
necessary to provide restitution to the Muslim community for the
unlawful destruction of their place of worship. Having weighed the
nature of the relief which should be granted to the Muslims, we
direct that land admeasuring 5 acres be allotted to the Sunni
Central Waqf Board either by the Central Government out of the
acquired land or by the Government of Uttar Pradesh within the
city of Ayodhya. This exercise, and the consequent handing over of
the land to the Sunni Central Waqf Board, shall be conducted
simultaneously with the handing over of the disputed site
comprising of the inner and outer courtyards as a consequence of
(2020) 1 SCC 1 para 1239 and 1243 pg.
::108:: MSR,J & TVK,J
wp_35061_1997&batch
the decree in Suit No. 5. Suit No. 4 shall stand decreed in the
above terms."
265. The court also held that concept of equity, justice and good
conscience is part of Indian law and can be applied by the Courts in
certain circumstances. It declared:
"1022. The common underlying thread is that justice, good
conscience and equity plays a supplementary role in enabling courts
to mould the relief to suit the circumstances that present themselves
before courts with the principal purpose of ensuring a just outcome.
Where the existing statutory framework is inadequate for courts to
adjudicate upon the dispute before them, or no settled judicial doctrine
or custom can be availed of, courts may legitimately take recourse to
the principles of justice, equity and good conscience to effectively and
fairly dispose of the case. A court cannot abdicate its responsibility to
decide a dispute over legal rights merely because the facts of a case do
not readily submit themselves to the application of the letter of the
existing law. Courts in India have long availed of the principles of
justice, good conscience and equity to supplement the incompleteness
or inapplicability of the letter of the law with the ground realities of
legal disputes to do justice between the parties. Equity, as an essential
component of justice, formed the final step in the just adjudication of
disputes. After taking recourse to legal principles from varied legal
systems, scholarly written work on the subject, and the experience of
the Bar and Bench, if no decisive or just outcome could be reached, a
Judge may apply the principles of equity between the parties to ensure
that justice is done. This has often found form in the power of the court
to craft reliefs that are both legally sustainable and just.(emphasis
supplied)
266. In State of Rajasthan v. Hindustan Sugar Mills Ltd40, the
Supreme Court declared that the High Court exercising high
(1988) 3 SCC 449, at page 455
::109:: MSR,J & TVK,J
wp_35061_1997&batch
prerogative jurisdiction under Article 226 can mould the relief in a
just and fair manner as required by the demands of the situation.
267. In Justice S.K. Ray v. State of Orissa41, this principle was
reiterated in the following terms:
" 11. ... A writ petition, which is filed under Article 226 of the
Constitution, sets out the facts and the claims arising thereto.
Maybe, in a given case, the reliefs set forth may not clearly set out
the reliefs arising out of the facts and circumstances of the case.
However, the courts always have the power to mould the reliefs
and grant the same."
268. M. Sudakar v. V. Manoharan42 also the Supreme Court had
declared:
"14. The power to mould relief is always available to the
Court possessed with the power to issue high prerogative writs. In
order to do complete justice it can mould the relief, depending upon
the facts and circumstances of the case. In the facts of a given case a
writ petitioner may not be entitled to the specific relief claimed by
him but this itself will not preclude the writ Court to grant such
other relief which he is otherwise entitled."
269. We shall invoke the principles of restitution and justice equity
and good conscience to ensure that justice is done to the Society and
it's members and mould the relief in these cases by directing the
State of Telangana, rep. by it's Principal Secretary, Municipal
Administration and Urban Development, Secretariat, Hyderabad to
determine and pay to the Society, after hearing the Society, within 2
months monetary compensation calculated as per the provisions of the
(2003) 4 SCC 21
(2011) 1 SCC 484
::110:: MSR,J & TVK,J
wp_35061_1997&batch
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) for the
extent of Ac.38.00 and 2121 sq.yds in Sy.No.128/1 and Sy.No.128/10
of Yousufguda village Ward No.8 Block 3 taking the market value of
the land existing on date of pronouncement of this common order.
The reason for doing so is that the State has failed to determine
and pay compensation under the provisions of A.P. Slum
Improvement (Acquisition of Land) Act, 1956 for the extent of
Acs.28.07 gts. notified by it under the said Act and deliberately did
not execute the judgment dt.15.09.1989 in LGC.No.2 of 1988 passed
by the Special Court in respect of the balance of extent of Acs.9.00,
thereby depriving the Society of even the said land arbitrarily.
270. We are compelled to do this since we have noticed that several
times the State of Andhra Pradesh and it's successor the State of
Telangana have sought time to consider allotting alternative land to
the Society and dragged on these cases for over 2 decades but have
ultimately rejected the said proposals twice i.e., once on 3.2.2007 in
Letter No.22753/M1/2005 of the Secretary to the Government,
Municipal Administration and Urban development Department, Govt.
of A.P. and again vide Memo No.45038/Assn.III(1)/2008 dt.12.7.2009
passed by the Special chief Secretary to the Government of
Telangana, though several instances of the State giving alternative
land to land owners for losing land to land grabbers have been cited
by the Society and the other petitioners.
::111:: MSR,J & TVK,J
wp_35061_1997&batch
271. Accordingly, we :
(a) allow W.P.No.35061 of 1997, W.P.No. 14771 of 2003,
W.P.No.9262 of 2006 and W.P.No.13424 of 2006,
W.P.No.7438 of 2007, W.P.No.27532 of 2008, W.P.No.3532
of 2009 and W.P.No.11026 of 2009 as under;
(b) declare that the action of the then State of A.P., it's successor
the State of Telangana and their officials in not executing the
judgment dt.15.9.1989 in LGC No.2 of 1988 of the Special
Court constituted under the A.P.Land Grabbing (Prohibition)
Act,1982 for eviction of 503 land grabbers from land of Ac.38,
2121 sq.yds in Sy.No.128/1 and 128/10 of Yousufguda Village,
belonging to the Society and notifying Ac.28-7gts of the said
land as a 'slum area' and acquiring it under the A.P.Slum
Improvement (Acquisition of Lands) Act,1956 through
notifications dt.12.12.1991, 20.3.1992 and 30.6.1992 is
arbitrary, illegal and violative of Art.14, 300-A of the
Constitution of India, in bad faith and as an abuse of law;
(c) declare that notifications dt.12.12.1991, 20.3.1992 and
30.6.1992 under the A.P. Slum Improvement (Acquisition of
Lands) Act, 1956 issued by the State of Andhra Pradesh
through the Commissioner, Municipal Corporation of
Hyderabad are null and void ab initio;
::112:: MSR,J & TVK,J
wp_35061_1997&batch
(d) consequently direct the State of Telangana rep.by it's Principal
Secretary, Department of Municipal Administration and Urban
Development, Secretariat, Hyderabad , to determine and pay,
after hearing the Society, within 2 months to the Society
compensation calculated as per the provisions of the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) for
the extent of Acs.38.00 and 2121 sq.yds in Sy.No.128/1 and
128/10 of Yousufguda Village Ward No.8 Block 3 in Greater
Hyderabad Municipal Corporation taking the market value of
the land existing on date of pronouncement of this common
order ;
(e) direct the State of Telangana to pay costs of Rs.2 lakhs to the
Society within 8 weeks.
272. Consequently, Interlocutory Application No.2 of 2019 in Writ
Petition No.11026 of 2009 is also allowed. As a sequel, miscellaneous
petitions pending if any in all the above Writ Petitions, shall stand
closed.
____________________________
M.S. RAMACHANDRA RAO, J
___________________
T.VINOD KUMAR, J
Date: 02.06.2021
LR copy to be marked : YES
B/o.Ndr
