Telangana High Court

M. Suryanarayana And Another vs The State Of Telangana And 6 Others on 21 March, 2023

Bench: J Sreenivas Rao

          HIGH COURT FOR THE STATE OF TELANGANA

                WRIT PETITION No.35371 OF 2022


Between:


       M. Suryanarayana, S/o. late Veera Venkaiah
       Aged 68 years, Occ: Agriculture
       And another
                                               ..           Petitioners

                                  Vs.

       The State of Telangana rep. by its Principal

       Secretary, Tribal Welfare Department, Secretariat, Hyderabad.

       And 6 others

                                                         .. Respondents


DATE OF THE ORDER PRONOUNCED:                         21.03.2023




1.   Whether Reporters of Local newspapers                      No
     may be allowed to see the judgment?


2.   Whether the copies of judgment may be                      Yes
     marked to Law Reporters/Journals


3.   Whether his Lordship wish to                               Yes
     see the fair copy of the judgment?
                                              2




               *HON'BLE SRI JUSTICE J. SREENIVAS RAO




                    + WRIT PETITION No.35371 OF 2022




                         % DATED 21st MARCH, 2023



# M. Surayanarayana& another                                    .. Petitioners

                                           Vs.

$ The State of Telangana rep. by its Principal Secretary, Tribal
  Welfare Department, Secretariat, Hyderabad and 6 others



                                                                .. Respondents


<Gist:

>Head Note:
! Counsel for the Petitioners : Sri Kowturu Pavan Kumar



^Counsel for Respondents             : Govt. Pleader for Social Welfare

                                         Govt. Pleader for Revenue

                                         Smt. Vasudha Nagaraj for Respondent
                                         No.7.


? CASES REFERRED                     :
1. 1999 SCC OnLine AP 565: (1999) (3) APLJ, 509 (HC)
2. 1981 (2) (APLJ) (HC) 260 : 1981 SCC OnLine AP 94
3. (2022) 2 Supreme Court Cases 25
4. 2013 SCC OnLine AP 729 :(2013)4ALD 386 (FB)
5. 2016 SCC OnLine Hyd 29
6. 2023 (2) ALD 337 (TS)
7. 2016 SCC OnLineHyd 150 : (2016) 4 ALD 297
                                      3




       HON'BLE SRI JUSTICE J. SREENIVAS RAO

             WRIT PETITION No.35371 OF 2022

ORDER:

This writ petition is filed seeking a Writ of Mandamus

declaring the action of the respondent Nos.2 to 6and their

subordinates in trying to dispossess the petitioners from their

respective lands i.e. land admeasuring Ac.3-05 gts in

Sy.No.1392/AA of petitioner No.1 and land admeasuring

Ac.3.06 gts in Sy.No.1392/A situated at Nagupalli Village,

Dammapeta Mandal, BhadradriKothagudem District of

petitioner No.2 without issuing notice and without following due

process of law under the guise of orders of LTR case

No.371/2005/DMPT dated 14.09.2007 as confirmed in C.M.A.

No.59/2008, dated 20.06.2009 as illegal, arbitrary and violative

of principles of natural justice and consequently set aside the

said orders and further direct the respondents not to dispossess

the petitioners from the subject land except in due course of

law.

2. Heard Sri Saket, learned counsel representing Sri

Kowturu Pavan Kumar, learned counsel for the petitioners,

learned Assistant Government Pleader for Social Welfare

appearing for respondent Nos.1 to 6 and Smt.Vasudha

Nagaraju, learned counsel for respondent No.7.

3. Brief facts of the present writ petition are as under:

3.1 The petitioners submit that they are owners of the land to

an extent of Ac.3-05 gts in Sy.No.1392/AA and Ac.3.06 gts in

Sy.No.1392/A, situated at Nagupalli Village, Dammapeta

Mandal, BhadradriKothagudem District, and their names were

mutated in the revenue records and pattadar pass books were

issued in their favour. They further submit that the respondent

No.6, some officials started interfering with their possession on

the ground that earlier LTR proceedings were initiated against

the brother of the 1st petitioner and father of the petitioner No.2

for the entire land and an order of eviction was passed on

14.09.2007 in LTR case No.371/2005/DMPT dated 14.09.2007

which was confirmed in C.M.A. No.59/2008, dated 20.06.2009.

In fact, father of the petitioner No.2 viz., M. Koteswara Rao died

on 14.12.2018 and the petitioners are not aware of the above

said orders.

3.2 That they made application under RTI Act and obtained

the copies of the orders in C.M.A. No.59/2008, dated

20.06.2009 from the office of the respondent No.3 on

22.08.2022. They further submit that the petitioners are in

possession of the subject property and late Koteshwara Rao also

had no knowledge about the order passed by respondent No.3.

3.3 It is further submitted that respondents have not followed

the procedure for execution of eviction order as per the

provisions of Telangana State Scheduled Areas Land Transfer

Regulations, 1959 R/w Regulation Act 1 of 1970 (hereinafter

referred to as "Regulations" for brevity) and the ejectment order

passed by the respondent No.4 dated 14.09.2007 which was

confirmed in C.M.A. No.59/2008, dated 20.06.2009 by the

respondent No.3 are not binding upon them.

3.4 They further submit that in the year 1974, similar

proceedings were initiated against the father of the petitioner

No.2 vide LTR No.1096/1974 and the same was dropped on

12.02.1975. Hence, the impugned order passed by the

respondent Nos.3 and 4 is hit by the principles of res judicata

and the respondent No.7 is not entitled to seek enforcement of

the impugned orders after lapse of 15 years.

4. Respondent No.6 filed counter stating that the name of

father of the petitioner No.1 was recorded as 'enjoyer' in the year

1980-81 pahani. Later, the names of petitioner No.1 and the

father of petitioner No.2 were recorded in the 'enjoyer' column

for the year 1981-1982 pahani, both became pattadars from the

year 1997-1998 and the transaction took place after the

"Regulations" came into effect only, and therefore, it is a clear

violation of the Regulations.

4.1 He further submits that respondent No.4 initiated the

proceedings vide LTR case No.371/2005/DMPT and after

following the due procedure under law passed ejectment orders

on 14.09.2007. Against the same father of the petitioner No.2

namely M. Koteswara Rao filed appeal vide C.M.A. No.59 of

2008 before respondent No.3 and the same was dismissed on

merits. Hence, the allegations made by the petitioners that M.

Koteswara Rao, who is the appellant in the said appeal and the

petitioners were not having knowledge about the said orders is

not true and correct.

5. Respondent No.7 filed counter contending that the

respondent No.4 rightly initiated the proceedings under

Regulations vide LTR case No.371/2005/DMPT and after

following due procedure, considering the contentions of the

parties, and also after verifying the records, passed the

ejectment orders on 14.09.2007 by giving cogent reasons,

holding that the sada sale deed entered between the father of

the petitioner No.1 viz., M. Veera Venkaiah and Karam China

Venkatappa is not valid and basing on the unregistered sada

sale deed the petitioners are not entitled to claim any rights over

the property. Aggrieved by the said order, the father of the

petitioner No.2 filed C.M.A. No.59/2008 before the respondent

No.3 through his counsel. The respondent No.3 after

considering the contentions of the parties, material evidence on

record dismissed the appeal by its order dated 20.06.2009. The

orders passed by the 2nd and 3rd respondents have become final

and binding on the parties. Pursuant to the said orders, the

revenue authorities have conducted panchanama dated

03.07.2008 and handed over the possession to the respondent

No.7 and since then the respondent No.7 has been in

possession and enjoyment of the property.

6. Petitioners filed reply affidavit stating that they are not

aware of the orders passed by the 4th and 3rd respondents dated

14.09.2007 and 20.06.2009 respectively. The allegations made

by the petitioners that revenue authorities handed over the

possession in favour of the respondent No.7 by conducting

panchanama, is not true and they are in the possession of the

subject property.

7. Sri Saket, learned counsel for the petitioners vehemently

contended that late Veera Venkaiah, who is father of the

petitioner had purchased the subject property on 05.05.1961

through sada sale deed from Karam China Venkaiah and since

then he has been in possession of the property. In the year

1974, respondent No.4 initiated suo moto proceedings under the

provisions of the "Regulations" vide Case No.1096/1974 against

the father of the 1st petitioner M. Veera Venkaiah. In the said

case Karam Mallamma, wife of deceased Venkatappa was

present before the respondent No.4 and admits the transaction

and handing over of the possession of the property. The father

of the 2nd petitioner viz., M. Koteswara Rao was also present.

Respondent No.4 dropped the proceedings while recording the

submissions of the parties held that the transaction took place

prior to Regulations came into force, by its order dated

12.02.1975.

7.1 He further submits that basing on the representation of

the respondent No.7, the respondent No.4 initiated the

proceedings vide LTR case No.371/2005/DMPT dated

14.09.2007 and the same was dismissed on the ground of

res judicata by its order dated 21.12.2005 and the said order

has become final.

7.2 He further submits that basing on the representation of

the respondent No.7, respondent No.4 initiated the proceedings

LTR case No.371/2005/DMPT and against M. Koteswer Rao

father of petitioner No.2 once again and passed ejectment order

dated 14.09.2007 stating that respondent therein purchased

the property through sada sale agreement which is not valid as

per the provisions of Section 17 (b) of Registration Act, 1908 and

the principles of res judicatais not applicable and also stated

that the respondent therein failed to prove that they are in

lawful possession over the said land as required under

Regulations. Aggrieved by the said order, father of the petitioner

No.2 filed C.M.A No.59 of 2008 before respondent No.3 and the

same was dismissed on 20.06.2009. Though respondent No.3

and 4 passed ejectment orders against the grandfather of the

petitioner No.1 and father of the petitioner No.2 and the said

orders were not executed as per the provisions of Regulations.

The orders passed by the respondent No.3 confirming the orders

of the respondent No.4 are liable to be set aside on the ground

of principles of doctrine of res judicata. He further submits that

the petitioners are in possession of the subject land. The

handing over of the possession to the respondent No.7 pursuant

to the panchanama dated 03.07.2008 is absolutely incorrect.

8. In support of his contentions, he relied upon the

judgments in Kola Mahalaxmi Vs Agent to Government,

Khammam & Others1 and in Gaddam Narsa Reddi and

Others Vs. Collector, Adilabad and others2.

9. Per contra, Smt. Vasudha Nagaraj, learned counsel

representing respondent No.7 submits that the subject lands

are situated in the scheduled area and the same is belonging to

him, who is a tribal. The petitioners are non-tribals, they are

not entitled to claim any rights over the property, especially

basing upon the alleged sada sale deed dated 05.05.1961, and

the said document cannot be taken into consideration as per

the provisions of Section 17 of Indian Registration Act, 1908.

9.1 She further contended that the earlier orders dated

12.02.1975 and 12.12.2005 were passed due to non-production

of the material evidence and the same is not a bar to invoke

fresh proceedings and the respondent No.4 rightly initiated the

proceedings under Regulations, and after verifying the entire

records, passed the ejectment order on 14.09.2007 by giving

cogent reasons. Questioning the said order, father of the

petitioner No.2 namely Morampudi Koteswara Rao had filed

1999 SCC OnLine AP 565: (1999) (3) APLJ, 509 (HC)

1981 (2) APLJ (HC) 260 : 1981 SCC OnLine AP 94

C.M.A. No.59 of 2008 before respondent No.3 through his

counsel. Respondent No.3 after considering the contentions of

the respective parties and after hearing the same dismissed the

appeal by its order dated 20.06.2009.

9.2 She further submits that against the order passed by

respondent No.3 Revision Petition lies before Government as per

the provisions of Section 9 of Regulations. Petitioners without

availing the alternative remedy as provided under statute, filed

the present writ petition before this Court and the same is not

maintainable under law. She also submits that the petitioners

filed the writ petition questioning the orders passed by the

respondent No.3 dated 20.09.2009 after lapse of more than 13

years and the same is liable to be dismissed on the ground of

delay and latches.

10. In support of her contentions, she relied upon the

judgment in Union of India and Others Vs. N. Murugesan and

Others3.

11. Learned Assistant Govt. Pleader for Social Welfare

submits that the respondent No.4 while exercising the powers

(2022) 2 Supreme Court Cases 25

conferred under the Regulations rightly initiated the proceedings

and passed the impugned order on 14.09.2007 and the same

was confirmed by the respondent No.3 on 26.06.2009 and there

are no grounds to interfere with the impugned order passed by

the respondent Nos.3 & 4. She also submits that the petitioners

without exhausting the alternative remedy as provided under

Sec.6 of Regulations filed the writ petition and the same is not

maintainable under law.

12. Having considered the rival submissions made by the

respective parties and upon perusal of the material available on

record, the following points would arise for consideration:

(i) Whether the petitioners are entitled to maintain the writ petition, which is instituted after more than 13 years, challenging the impugned order dated 20.06.2009?

(ii) Whether the petitioners are entitled to any relief as claimed for in the writ petition?

(iii) To what relief?

Point Nos.i to iii

13. It is undisputed fact that respondent No.4 initiated the

proceedings vide LTR case No.371/2005/DMPT dated

14.09.2007 by exercising the powers conferred under the

Regulations. In the said case the father of the petitioner No.2

viz., Morampudi Koteswera Rao appeared and submitted his

explanation. Similarly, the respondent No.7 was also present

and after recording their statements and after verifying the

record passed the ejectment orders on 14.09.2007 the operative

portion of the order is extracted hereunder:

" Perused the case records from the LTR case orders passed in case No.1196/1994, it is evident that the then SDC/TW), Palvoncha had ignored the fact that the respondent purchased the suit schedule land through sada sale agreement which is not valid under Sec.17-B of Registration Act. The sada sale agreement is not valid under Reg.1/59 r/w 1/70. Hence,res judicata could not be considered in this case. The respondent failed to prove his lawful possession over the suit schedule land as required under Reg.1/59 r/w 1/70.

As per the evidence placed before this Court, it is proved that the transfer of immovable property belonging to the ST (petitioner herein) was made to the Non-tribal in contravention of the sub-section 1 of the Section-3 as laid in the Andhra Pradesh (Scheduled Areas) Land Transfer Regulation, 1959 read with the Regulation 1 of 1970 after commencement of the said Regulation and as such it is null and void.

In exercise of the powers conferred on me by the Sub- Section 2(a) of the Section-3 of the Regulation 1 of 1959 I do hereby order ejectment of the respondent or whomever is in possession of the immovable property described in the scheduled given below and direct that the immovable property in question be restored to the tribal petitioner or his legal heirs under cover of panchanama".

13.1 Aggrieved by the said order, the father of the petitioner

No.2 namely Morampudi Koteswera Rao had filed C.M.A.

No.59/ 2008 before respondent No.3 under the provisions of

Regulations, through his counsel. Respondent No.3, after

considering the contentions and also after hearing the parties,

dismissed the appeal on merits by its order dated 20.06.2009,

holding that the appellant therein claimed the property basing

on the alleged sada sale deed dated 05.05.1961 made between

M.Veera Venkaiah and Karam China Venkatapa and the same

is not valid and basing on the unregistered sale deed appellant's

family will not to acquire any rights over the schedule land and

further held that nowhere either the name of the non-tribal

appellant or his father name was found either in 'Patta' column

or in 'enjoyers' column. Their names have been found only in

the year 2004-05 onwards and the appellant therein is in

possession of land after the Regulations came into effect, and

the same is contrary to the Regulations and further held that

the earlier orders passed in LTR case No.371/2005/DMPT

dated 14.09.2007 and LTR No.1096/1974 dated 12.02.1975 in

the absence of documentary evidence and principles of res

judiciata are not applicable and the respondent No.4 rightly

passed the ejectment order.

13.2 The petitioners filed the present writ petition aggrieved by

the orders dated 20.06.2009 passed by the respondent No.3

confirming the orders dated 14.09.2007 of the respondent No.4

after lapse of nearly more than 13 years. The petitioners have

not given any reasons in the affidavit filed in support of the writ

petition why they have not chosen to file the writ petition within

the stipulated time or within the reasonable time. Though

there is no prescribed period of limitation for filing the writ

petition, under Article 226 of Constitution of India but the

parties have to approach the Court within the reasonable period

of limitation.

13.3 The petitioners simply stated that they are not aware of

the orders passed by the respondent Nos.3 and 4 till the

officials of the respondent No.6 started interfering with their

possession. The reasons assigned in support of the affidavit

filed by the petitioner is not acceptable on the sole ground that

the father of the petitioner No.2 namely Morampudi Koteswara

Rao, who is the respondent in LTR case No.371/2005/DMPT,

prosecuted the proceedings before respondent No.4 and he filed

appeal vide C.M.A. No.59 of 2008 before respondent No.3

questioning the ejectment orders passed by the respondent No.4

dated 14.09.2007 through his counsel and he contested the

appeal before the respondent No.3 and the said appeal was

dismissed on merits by its order dated 26.06.2009. At the time

of passing of the order, the father of the petitioner No.2 is alive

and as per the averments made in the affidavit, he died on

04.12.2018. The petitioners to cover up the long delay and

latches simply stated that they are not aware of the impugned

order passed by the respondent No.3. It is not the case of the

petitioners that the father of the petitioner No.2 namely M.

Koteswer Rao, who is appellant in C.M.A. No.59/2008 or his

counsel have not received copy of the impugned order dated

20.06.2009 or the respondent No.3 without giving any

opportunity to them passed the impugned order behind their

back. So, in the absence of any such reasons, cogent and

convincing evidence, the petitioners are not entitled to seek any

relief much less to the relief sought in the writ petition by

invoking jurisdiction of this Court under Article 226 of

Constitution of India.

13.4 It is pertinent to mention here, that during the life time of

father of the petitioner No.2 has not taken any steps to

question the orders passed by the respondent Nos.3 and 4 and

after his death the petitioners filed the present writ petition

after lapse of more than 13 years and they stated that they

are not aware of the orders passed by the respondent Nos.3

and 4 and also the same are not binding upon them, is not

acceptable under law. It is already stated supra that it is not

the case of the petitioners that the respondent No.3 dismissed

the appeal and passed the impugned order dated 20.06.2009

behind back of the father of the petitioner No.2 who is the

appellant in the appeal CMA No.59/2008, without giving

opportunity either to the father of petitioner No.2 or to his

counsel, and they have not received the copy of the said order.

Hence, the contention raised by the petitioners that the orders

passed by the respondent Nos.3 and 4 are not binding on the

petitioners, is not tenable under law.

14. In Kola Mahalaxmi case stated (supra), paragraph No.9

reads as under:

"9. Nextly it is contended on behalf of the petitioner that the earlier order of the competent authority under the Regulations dated 24-5-1973 has decided the lis between the parties and the father of the respondent No. 1 by name Bade Pullaiah has already suffered an order dated 24-05- 1973, in which the authorities have held that the said sale being prior to the commencement of the Regulation could not be considered and accordingly rejected the petition. The respondent No. 1 being his successor, is bound by the said order and the matter cannot be re-opened at his instance. The learned Counsel for the petitioner further submitted that the present impugned orders passed on the basis of the report of the Special Deputy Tahsildar (TW), Paloncha is hit by the principles of res judicata. As against this contention, the learned Counsels for the respondents submitted that the principle so res judicata does not apply to the orders of the authorities like Tribunals and such a principle applies only to the Courts. In support of their contention, they relied upon the judgment of this court reported in G. Raghavulu v. Agent to Government (supra). After going through the entire judgment, I find that the learned single Judge of this Court has held that the principle of res judicata or a principle analogous thereto shall be applied with a caution and circumspection, dealing with the cases arising under the Regulations, which are meant for protection of the tribals. He further held that if the proceedings were dropped earlier for the reason that the respondent-tribal could not produce sufficient evidence, it does not preclude the authorities for a subsequent enquiry. From this judgment, it is clear that the earlier enquiry was

dropped for lack of evidence and a subsequent fresh enquiry was started regarding the alleged violation of the Regulations. Having regard to these circumstances, this Court held that the principle of res judicata would not apply to that case. But in the instant case I find from the earlier order dated 24-5-1973, that the authorities rejected the petition filed by the respondent No. 1's father on the ground that the sale deed dated 11-3-1963 though unregistered was prior to the commencement of the Regulations. Thus, the said Order was on merits and the respondent No. 1's father himself was a party to the said order and the said order has become final and as such the principle of res judicata applies to this case".

14.1 In Gaddam Narsa Reddi and Others case stated (supra)

12. Sri B Subhashana Reddy, the learned counsel for the petitioners in the writ petition WP No. 4204/77 and the other learned counsel appearing for the petitioners or appellants in the connected matters which, have been directed to be posted along with the said writ petition contended that the Regulation 1 of 1959 which came into force in Telangana Area on 1-12- 1963 has no retrospective operation, and, therefore, the transfers made by the tribals to non-tribals would not be affected by the provisions of Section 3(1) of the said Regulation. If so, the Special Deputy Collector, Tribal Welfare and the Collector on appeal, have no jurisdiction to declare under section 3(2) of the said Regulation the transfers as illegal or null and void, and to direct the eviction of the petitioners from the lands in question or to direct that possession of the lands should be restored to the tribals.

18. So far as the latter submission is concerned, it is clear from the provisions of section 3(2)(a) of the Regulation that the Agency or the Agency Divisional Officer or the other officer mentioned therein can only pass a decree of ejectment against any person in possession of the property claiming under a transfer from a tribal where such transfer of immovable property is made in contravention of sub-section (1) of Sec. 3. Therefore, the jurisdiction under section 3(2) of the authorities mentioned therein to pass a decree of ejectment is limited to determine, the question whether the transfer effected is made in contravention of the provisions of sections 3(1)(a) and (b). But, in a proceeding under section 3(2)(a), the Agent or the other authorities mentioned therein are not empowered to determine whether the protection of section 53-A of the Transfer of Property Act Would be available to the transferees in the absence of prior permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act Or a validation

certificate under Section 50-B of the said Act. Under Section 3(2) of the Regulation, the enquiry of the authorities is confined only to declare null and void the transfer of immovable property situated in agency tracts if it contravened the provisions of section 3(1) of the Regulation and to decree ejectment against any person in possession of the property claiming under such transfer. To such a transfer falling within the purview of Sec. 3(1)(a) the provision of the Transfer of Property Act or the provisions of Hyderbad Tenancy and Agricultural Lands Act or the Indian Registration Act would not apply, and, therefore, the protection of section 53-A of the Transfer of Property Act would not be available to a person in possession claiming under a transfer falling within the purview of section 3(1)(a) of the Regulation. In other words where a transfer contravenes the provisions of section 3(1)(a) of the Regulation, it will not be saved even If it has been mads in conformity with the relevant provisions of the Transfer of Property Act or the Indian Registration Act or the Hyderabad Tenancy and Agricultural Lands Act or any other law applicable thereto. Thus, a person in possession of immovable property in agency tract by virtue of a transfer made in contravention of the provisions of Section 3(1)(a) would not be entitled to claim the benefit of section 53-A of the Transfer of Property Act whether it conforms to the relevant provisions of the Transfer of Property Act, Indian Registration Act or the Hyderabad Tenancy and Agricultural Lands Act. The authorities under Section 3(2)(a) of the Regulation are conferred special or exclusive jurisdiction to determine the limited question whether the transfer of immovable property situated in the agency tracts is made in contravention of the provisions of section 3(1) of the Regulation, and any other question is outside the scope of such a proceeding under section 3(2)(a) of the Regulation. In this view, it is not open to the authorities under section 3(2)(a) to go into the question whether the sale or agreement to sell is registered or not, or whether the transferee under such a transfer is entitled to the protection of section 53A of the Transfer of Property Act in the absence of any prior permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act or validation certificate under section 5 D-B of the said Act. Hence it is unnecessary for us to go into the conflicting views expressed by several decisions of this Court on the question whether the protection of section 53-A of the Transfer of Property Act is available to a transferee in possession under an agreement to sell, where the provisions of section 47 or section 50-B of the Hyderabad Tenancy and Agricultural Lsnds Act have not been complied with.

25. The question for consideration is, whether the Regulation I of 1959 as amended by the subsequent Regulation II of 1963 and Regulation I of 1970, has retrospective effect and affects transfers made prior to coming into force of the said Regulations. That is, whether the said Regulation would affect

transfers made by members of the Scheduled Tribes in the agency tracts of Telangana area priorto 1-12-1963 or to transfers made of lands in the agency tracts by non-tribals prior to the coming into force of the Regulation I 1970. There is no express provision in the said Regulation giving retrospective effect. Section 2(g) merely defines "transfer" and it includes a contract to sell; but it does not indicate whether it applies to transfers made prior or subsequent to the said Re- gulation. Section 3(1)(a) declares that "any transfer of immovable property situated in the Agency tracts by a person, whether or not such person is a member of a Scheduled Tribe........................................ shall bo absolutely null and void unless the transfer is made in favour of a person who is a member of a Scheduled Tribe or a society mentioned therein." Section 3(2)(a) applies only to a transfer made in contravention of subsection (1) of section 3. These provisions do not indicate whether they are applicable to transfers made prior to the coming into force of the said Regulation as amended from time to time. The language of sections 3(1)(a) and 3(2)(a) does not expressly give them retrospective effect.

28. In Venkataramanayya. Deputy Collector, Tribal Welfare (7) 1976 (2) APLJ 212, it was held that the provisions of Section 3(1) of the Regulation I of 1959 had no application to a sale which took place long prior to the coming into force of the said Regulation. The question as to the constitutional validity of the Regulation I of 1959 as amended by Regulation I of 1970 and whether it has retrospective effect, came up for consideration in an unreported decision in In re Talluri Lakshmayya (8) Judgment in W.P. No. 776/70 & batch Dt. 24-9-1971. The learned Judges, K.V.L. Narasimham, Chief Justice and Kuppuswamy, J (as he then was), by Judgment dated 24-8- 1971 held that the provisions of Section 3(1) of the Regulation I of 1959 as amended by Regulation I of 1970 were valid, but held that the amending Regulation I of 1970 is not restrospective in operation and does not effect transfers made by tribals with consent as prescribed or by non-tribals for which transferee's consent was not necessary. The learned Judges held that the amending regulation was not declaratory in character, and that there is nothing in the language of the amending regulation to give it restrospectivs operation, and that it is a well recognised rule that a statute should be interpreted as not to affect vested rights and that the amending regulation would not affect transfers of immovable property made prior to the coming into force of the amending regulation. Therefore, either on principle or on authority, the provisions of section 3(1) of Regulation I of 1959 as amended by Regulation II of 1963 or Regulation I of 1970 cannot be given retrospective effect so as to affect transfers made prior to the coming into force of the regulation, or its amendments by regulation II of 1933 or Regulation I of 1970.

15. The learned counsel for the petitioners relied upon the

above judgments viz., (i) Kola Maha Laxmi, contending that the

impugned orders passed by the respondent No.3 are hit by

principles of res judicata and (ii) Gaddam Narsa Reddy

contending that the sada sale deed dated 05.05.1961 does not

require registration. However, this Court is not going into the

merits of the case to decide the above said aspects, on the sole

ground that the petitioners have filed the writ petition

questioning the order dated 20.06.2009 passed by the

respondent No.3 after lapse of more than 13 years without

explaining satisfactory reasons.

16. In Union of India and Others (supra) the Hon'ble

Supreme Court laid down the principles on delay/latches/

limitation while entertaining the writ petition under Article 226

of Constitution of India. It is held:

"20. The principles governing delay, latches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which latches and acquiescence are species. Similarly, latches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not latches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The

question of prejudice is also an important issue to be taken note of by the court.

21. The word "latches" is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.

25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become latches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis".

17. In P.V. Narayana Versus APSRTC, Hyderabad and

others4 Full Bench of this Court held:

"70. From the decisions of the Supreme Court, it is seen that no limitation is prescribed for filing a petition under Article 226 of the Constitution and there is no rule of universal application for condoning the delay. Though there is no period of limitation prescribed for filing a petition under Article 226, a person aggrieved should approach the Court without loss of time and if there is delay, then cogent explanation should be offered for the same. The line of decisions of the Supreme Court on the issue would be indicative that the Courts have evolved self imposed restraints in enquiring into belated or stale claims. Though it is open to the High Court to exercise

2013 SCC OnLine AP 729 :(2013)4ALD 386 (FB)

its own discretion to grant any relief in stale or belated claims, before going to exercise such discretion, the Court has to enquire whether the party is guilty of laches for a reasonable period of delay in approaching the Court. The exercise of such discretion would depend upon different circumstances and facts and may be different from case to case. In a case delay of six months or so may be treated as inordinate and fatal in the facts and circumstances of the case and the Court may decline to condone the delay but in another case delay of five years or so though may be treated as inordinate but not fatal in the fact situation the Court may condone the delay as an exception to meet the ends of justice. Therefore, it all depends upon facts of each case.

71. On the basis of the decisions of the Supreme Court referred to above, the relevant considerations that may be taken into account in determining the issue of delay and laches may be summarized thus:

(1) Though no period of limitation is prescribed for the writ Courts to exercise their powers under Article 226 of the Constitution of India or to file a writ petition, a person aggrieved should approach the Court without loss of time. In appropriate cases, where there is delay and the same has properly been explained with cogent reasons, Court may condone the delay as an exception to meet the ends of justice. But, it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.

(2) Courts have evolved rules of self-imposed restraints or fetters where the High Court may hot enquire into belated or stale claim and deny relief to a party if he is found guilty of laches. One who is tardy, not vigilant and does not seek intervention of the Court within a reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right, is not entitled to relief under Article 226.

(3) No hard and fast rule can be laid down for universal application and every case shall have to be decided on its own facts.

(4) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.

(5) There is no lower limit or upper limit and it will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose.

(6) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.

(7) Where there is remiss or negligence on the part of a party approaching the Court for relief after an inordinate and unexplained delay, in such cases, it would not be proper to enforce the fundamental right As a general rule if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party in exercise of the extraordinary power of mandamus.

(8) There is no waiver of fundamental right But while exercising discretionary jurisdiction Court can take into account delay and laches on the part of the applicant in approaching a writ Court

(9) Though the High Court in exercise of the power under Article 226 in its discretion grant relief in cases where the fundamental rights are violated, but, in such cases also, High Court, to meet the ends of justice, shall refuse to exercise its high prerogative jurisdiction in favour of a party who has been guilty of laches and where there are other relevant circumstances which indicate that it would be inappropriate to exercise the discretionary jurisdiction.

(10) The maximum period fixed by the Legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured.

(11) If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Courts have applied the rule of delay with greater rigor in service matters.

(12) The benefit of a judgment cannot be extended to a case automatically. The Court is entitled to take into consideration the fact as to whether the petitioner had chosen to sit over the matter and wake up after the decision of the Court If it is found that the petitioner approached the Court with unreasonable delay, the same may disentitle him to obtain a discretionary relief. Long Delay disentitles a party to the discretionary relief under Articles 32 and 226 and persons who had slept over their rights for long and elected to wake up when they had the impetus from the judgment of similarly placed persons.

(13) Where during the intervening period rights of third parties have crystallized, it would be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and where there is no cogent explanation for the delay.

(14) Where the appellate authority acting within its jurisdiction condoned the delay after being satisfied with the facts stated in relation thereto, the High Court in exercise of its powers under Article 226 or 227 of the Constitution should not ordinarily interfere with the order.

18. In R.R. Chandraiah v. Labour Court-cum-Industrial

Tribunal, Ananthapur and another5 while considering the

judgments of the Hon'ble Apex Court and the Hon'ble Full

Bench of this Court dismissed writ petition on the ground of

delay and latches as the petitioner therein filed writ petition

2016 SCC OnLine Hyd 29 : 2016 (4) ALD 450

questioning the Award passed by the Labour Court-cum-

Industrial Tribunal, in I.D. No. 161 of 1998 dated 30.08.2001

after lapse of ten years.

19. Further, in the case of N. Krishna Vs. Managing

Director, APSRTC, Musheerabad, Hyderabad and Others6 .

held:

19. The Division Bench of this court in D. Gopala Krishnam Raju Vs. Union of India and Others, MANU/TL/1063/2021, W.P. No.17239 of 2005, decided on 22.12.2021, wherein it was held at Para Nos.13 and 14 as follows :

13. Dealing with these aspects in M.J. Jame's case (supra), the Hon'ble Supreme Court observed that:

"30.... A right not exercised for long time is non-existent. Doctrine of delay and latches as well as acquiescence are applied to no-suit the litigants who approach the Court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time".

34. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken upto gain any advantage and benefit, which aspects have been noticed in DehriRohtas Light Rely. Co. Ltd., V. District Board, Bhojpur, (1992) 2 SCC 598 and State of Maharashtra V. Digamber, (1995) 4 SCC 683. These facts, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. There have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment" (Emphassis supplied).

6 2023 (2) ALD 337 (TS)

14.Thus, the writ petition is liable to be dismissed on the aspect of delay and laches and also on non-joinder of necessary and proper parties".

20. It is pertinent to mention herein that when there is an inordinate delay of 22 years in filing writ petition, the petitioner must explain the delay by giving bona fide reasons. In the case on hand, the petitioner simply stated in his affidavit that due to misplace of record, he could not file the writ petition within a reasonable time. If that be so, the petitioner has not specifically stated the steps he has taken in acquiring the required documents from his employer when admittedly he is continuing in service and attending his duties as Asst. Depot Clerk in the respondent-Corporation and he being well versed with the procedure. The petitioner ought to have made efforts to obtain those documents from the management of the respondent-Corporation for taking necessary steps on the ground of misplace of the record. But the petitioner is not diligent enough in taking steps and he had sleptover the matter throughout his service for more than two decades and has miserably failed to explain the inordinate delay of 22 years in filing the present writ petition. Unless the petitioner satisfies the abnormal delay, he is not entitled to claim the equitable relief as envisaged under Article 226 of the Constitution of India to invoke the jurisdiction of this Court.

21. Taking the note of the principles enunciated by the Division Bench of this Court and also the judgment in D. Gopala Krishnam Raju's case (supra) and P. Venkat Reddy's case (supra), this Court has noticed that the petitioner being an employee of respondent-Corporation, who had been in service kept quiet and now the question looms large as to why he did not raise his little finger in tracing out the record or acquiescence of record writ petition is liable to be belated stage with undue delay and laches from the respondent- Corporation and at a aspect of delay and laches approached this Court invoking the writ on-joinder of necessary and jurisdiction and filed this writ petition after a long period of 22 years. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains this type of writ petition, for no employee, land who had grievance as has been raised in this writ petition have genuinely waited more than two decades, but suffice it to say that the very conduct of not tracing out the record and not acquiring the same from the respondent-Corporation appears to be quite illusory. This, Court do not see any tangible grounds as well as any bona fides in prosecuting the matter, after a lapse of 22 years from the date of passing the impugned order.

20. In the case of The Commandant, 8th Bn TSSP,

Kondapur, Ranga Reddy District and others Vs. T. Venkata

Sai Krishna and another7 the Hon'ble Division Bench of this

Court also held:

"8. Section 21 of the Administrative Tribunals Act, 1985 stipulated one year time from the date of arising of cause of action for an employee to invoke the jurisdiction of the Tribunal. This being so, we do not find any reason as to why the same yardstick shall not be applied to the employer for filing the writ petition, if he is aggrieved by the order passed by the Tribunal. Though Article 226 of the Constitution of India does not stipulate any period of limitation for filing writ petitions, in a catena of decisions, the Supreme Court held that even in the absence of limitation, the Constitutional Courts have to examine whether the party has approached the Court within a reasonable time and that what is reasonable time depends on the facts of each case. (See State of M.P. v. Bhailal Bhai, TilokchandMotichand v. H.B. Munshi and Mafatlal Industries Ltd. v. Union of India. As noted hereinbefore, for an employee, a limitation of one year is stipulated. It is appropriate that the same yardstick shall be applied to the State or any other employer for filing a writ petition against the orders of the Tribunal. Any other standard, in our opinion, would discriminate between an employee and an employer. Applying this yardstick and in the absence of any explanation whatsoever offered for the inordinate delay in filing the present writ petition, we are of the opinion that the writ petition is liable to be dismissed on the ground of laches alone".

21. Having regard to the view expressed by the Hon'ble Apex

Court and this Court, though there is no prescribed time limit

for filing writ petition, the parties have to approach the Court

within a reasonable time, and in the absence of satisfactory

explanation for the inordinate delay, the parties are not entitled

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to seek equity jurisdiction as enshrined under Article 226 of

Constitution of India.

22. For the reasons mentioned hereinabove, the petitioners

have filed the present writ petition before this Court on

08.09.2022 questioning the impugned order dated 20.06.2009

passed by the respondent No.3 after lapse of more than 13