Pillarisetti Harinath Babu, ... vs The Special Deputy Collector, ...
2023 Latest Caselaw 1411 Tel

                 HIGH COURT FOR THE STATE OF TELANGANA

                         WRIT PETITION No.619 OF 2008


Between:
Pillarisetti Harinath Babu
S/o. Late Seetha Rama Swamy,
Aged about 64 years, Occ: Agriculture,
R/o Bandarugudem, Manuguru Mandal,
Khammam District and another                             .. Petitioner


                                          Vs.

The Special Deputy Collector (Tribal Welfare),
Bhadrachalam, Khammam District & 4 others.              .. Respondents


DATE OF THE ORDER PRONOUNCED:              27.03.2023




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


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


3.   Whether his Lordship wish to                        Yes/No
     see the fair copy of the judgment?
                                          2



                  * HON'BLE SRI JUSTICE J. SREENIVAS RAO



                      + WRIT PETITION No.619 OF 2008


                           % DATED 27th March, 2023

Pillarisetti Harinath Babu
S/o. Late Seetha Rama Swamy,
Aged about 64 years, Occ: Agriculture,
R/o Bandarugudem, Manuguru Mandal,
Khammam District and another                                     .. Petitioner

                                       Vs.

The Special Deputy Collector (Tribal Welfare),
Bhadrachalam, Khammam District & 4 others.                       .. Respondents


<Gist:

>Head Note:
! Counsel for the Petitioners : Sri K. Jagadeeshwar Reddy

^Counsel for Respondents    : Learned Assistant Govt. Pleader for Tribal Welfare
                              Smt. Vasudha Nagaraj,



? CASES REFERRED:

1. 2000(2) ALT 155 (D.B.)
2. 2000(3) ALD 363 (D.B.)
3. 2009(2) ALD 651
4. 1994(2) An WR 216
5. 2002(4) ALT 669 (D.B.)
                                       3




             HON'BLE SRI JUSTICE J.SREENIVAS RAO

                   WRIT PETITION No.619 OF 2008

ORDER:

This writ petition is filed seeking writ of mandamus

declaring the action of respondent No.1in initiating the

proceedings under LTR Case No.50/2008/MGR,Dt 03.01.2008

and declare the same as illegal, arbitrary, without authority of

law and unconstitutional.

2. Brief facts of the case:

2.1 The petitioners submits that he is the owner and

possessor of land to an extent of Acs.1.31 guntas in Survey

No.228 of Bandarugudem village, Manguguru Mandal,

Khammam District and the same was purchased in the year

1961 from Bandaru Tirumali who is the Grandfather of

respondent No.3. After purchase he had developed the said

land by investing huge amounts, by digging well and by

obtaining electricity connection and also raised mango Garden

and constructed a house in part of the land and obtained house

numbers bearing No.7-1-200 to 2004 from Gram Panchayat.

He has also constructed another house and his name was

mutated in the revenue records and pattadar pass books were

issued by revenue authorities.

2.2 The father of respondent No.3 namely Chinnabbai initiated

proceedings under Andhra Pradesh Scheduled Areas land

Transfer Regulations and Rules 1959 (hereinafter called for

brevity as 'Regulations'), before respondent No.1 vide Case

No.24/MGR/83 and respondent No.1 dropped the said

proceedings by its order dated 02.02.1984 holding that there is

no violation of Regulations and the said order has become final.

The petitioner further submits that grandfather of respondent

No.3 initiated proceedings under Regulations before respondent

No.1 vide Case No.238/87/MGR and the same was dismissed

on 04.12.1987 on the ground that the subject matter of case

was already disposed of on 02.02.1984 and further action is

dropped. He further submits that grandfather of respondent

No.3 initiated proceedings once again before respondent No.1 in

the year 1988 vide Case No.1132/88/MGR and the same was

dismissed on 21.07.1992. He further submits that father of

respondent No.3 categorically deposed before respondent No.1

in the year 1984 that his father along with him and his two

brothers have sold the subject lands to petitioner No.1, twenty

four (24) years back.

2.3 The petitioners further submits that respondent No.1

once again initiated proceedings at the instance of respondent

No.3 vide letter No.86/2002/MGR and issued notice directing

the petitioners to attend the hearing on 03.10.2002 and

petitioner No.2 appeared before respondent No.1 on the said

date but respondent No.1 has not attended the office due to

rastha rook and the case was adjourned to 24.10.2002.

Subsequently, the petitioners engaged a counsel and filed

counter before respondent No.1. Respondent No.1 without

giving opportunity of hearing passed the order on 11.11.2002

directing the petitioners to vacate the land to an extent of

Acs.0.10 guntas.

2.4 Aggrieved by the said order dated 11.11.2002, the

petitioners filed appeal before Agent to Government/District

Collector on 24.12.2002 along with stay petition. When the

appellate authority failed to pass order in the stay application,

the petitioners have approached this Court by filing W.P.No.357

of 2003 and the same was disposed on 08.01.2003 suspending

the order dated 11.11.2002 passed by respondent No.1 till

disposal of the appeal. Subsequently, the said appeal was

transferred to the Agent to Government at Khammam and

renumbered as CMA No.1 of 2003and the same was allowed by

setting aside the order dated 11.11.2002 and remitted the

matter to respondent No.1 for fresh disposal by its order dated

21.04.2005.

2.5 Questioning the said order dated 21.04.2005, the

petitioners filed W.P.No.11865 of 2005. This court allowed the

writ petition and set aside the orders dated 21.04.2005.

Aggrieved by the same respondent No.3 filed W.A.No.877 of

2006 and the same was dismissed on 07.09.2006 granting

liberty to respondent No.3 to file a review petition. Thereafter,

respondent No.3 filed Review W.P.M.P. No.27217 of 2006 and

the same was dismissed on 21.12.2006. Against the same

respondent No.3 filed W.A.No.612 of 2007 and the same was

dismissed on 09.08.2007.

2.6 The petitioners further submits that at the instance of

respondent No.3 once again respondent No.1 initiated LTR

proceedings and issued impugned notice vide LTR Case

No.50/2008/MGR dated 03.01.2008 directing the petitioners

herein to show cause within 15 days as to why they should not

be ejected and the property should not be restored to the

transferoror his/her heirs. Questioning the said notice the

petitioners filed the present writ petition.

3. Respondent No.3 filed counter denying the allegations

made by the petitioners contending that they are not the owners

of the land to an extent of Acs.1.31 guntas in Survey No.228,

Bandarugudem village, Manguguru Mandal, Khammam District

and the property belongs to respondent No.3 and he acquired it

from his ancestors. He further submits that his grandfather

has not sold the land to the petitioner No.1 in the year 1961.

The village pahani shows that the ownership is vested with his

grandfather till 1995-96 and in the crucial year of 1962-63 and

1963-64, not only ownership but possession was also with his

grandfather. Petitioner No.1 entered as purchaser with effect

from 23.02.1966. Such purchase from a tribal by a non-tribal

is hit by Regulations.

3.1 He further submits that in earlier LTR proceedings, his

father and grandfather were not able to produce crucial

evidence in support of their claim due to which the writ

petitioners succeeded in those proceedings and the principle of

res judicata is not applicable to the LTR proceedings. The

earlier proceedings and common order passed in W.P.No.4431

of 2004 and 11865 of 2005 dated 06.06.2006 and order in

W.A.No.612 of 2007 dated 09.08.2007 will not come in the way

and respondent No.3 has rightly initiated the proceedings

under Regulations vide LTR Case No.50/2008/MGR and issued

notice dated 03.01.2008 directing the petitioners to submit

explanation. The impugned notice issued by respondent No.1 is

only a show cause notice and the writ petition filed by the

petitioners is not maintainable under Article 226 of

Constitution of India.

4 Respondent No.1 and respondent No.2 also filed counter

contending that the subject land is situated in the agency area

and the petitioners are non-tribals and they have not proved

that the property was purchased prior to the Regulations came

into effect nor produced any evidence in that regard. In the

revenue records the names of father and grandfather of

respondent No.3 were shown in the relevant pahani extracts

from year 1961-62 to 2004-05. Due to non-availability of those

documentsthe same were not produced in earlier proceedings

and respondent No.3 has rightly initiated proceedings afresh

basing on the fresh evidence and the same is permissible under

law and further stated that the writ petition filed by the

petitioners against the show cause notice is not maintainable

under law.

5. It appears from the records that during the pendency of

the writ petition respondent No.3 died and respondent No.4 and

5 were brought on record as legal heirs of the deceased

respondent No.3.

6. Heard Sri K. Jagadeeshwar Reddy, learned counsel for the

petitioners, learned Assistant Government Pleader for tribal

welfare appearing for respondent Nos.1 and 2 and

Smt. Vasudha Nagaraj, learned counsel appearing for

respondent Nos.4 and 5.

7. Learned counsel for the petitioners submits that at the

instance of father of respondent No.3, respondent No.1 initiated

proceedings vide Case No.24/83/MGR and the same was

dismissed on 02.02.1984 holding that the subject land was sold

to petitioner No.1 by father of respondent No.3, twenty four(24)

years back. Thereafter, father of respondent No.3 initiated

proceedings vide Case No.238/87/MGR and the same was

dropped on 04.12.1987 on the ground of res judicata. Once

again at the instance of respondent No.3, proceedings were

initiated by respondent No.1 and the same was also dropped on

the ground of res judicata by its order dated 21.07.1992 vide

Case No.1132/88/MGR.

7.1 Aggrieved by the said order, father of respondent No.3 filed

appeal before Agent to Government at Khammam vide CMA

No.1 of 2003. The appellate authority by setting aside the order

dated 11.11.2002, allowed the appeal and remitted the matter

back to respondent No.1 for fresh disposal by its order dated

21.04.2005.

7.2 He further submits that questioning the said order the

petitioners filed W.P.No.11865 of 2005 before this Court. This

Court was pleased to allow the writ petition along with W.P.

No.4431 of 2004 and passed the common order on 06.06.2006.

Aggrieved by the said order respondent No.3 filed W.A.No.877 of

2006 and the same was dismissed with a liberty to file review

petition. Thereafter, respondent No.3 filed Review

W.P.M.P.No.27217 of 2006 and the same was dismissed on

21.12.2006. Aggrieved by the same, respondent No.3 filed

W.A.No.612 of 2007 and the same was dismissed on

09.08.2007 and the said order has become final and the same

are binding upon all the parties concerned in respect of subject

land.

7.3 He vehemently contended that the impugned notice issued

by respondent No.1 dated 03.01.2008 is contrary to the earlier

orders passed by respondent No.1 as well as by this court and

the same is liable to be declared as illegal and hit by the

principles of res judicata. In support of his contentions he

relied upon the following judgments:

i. Chintalapati Ramalinga Raju Vs. District

Collector, Eluru, W.G.District and another1.

        ii.     Executive Engineer, I.B. Division, Nirmal and

                others Vs. C. Shankar and others2

        iii.    V.R.koteswar Rao Vs. Government Of Andhra

                Pradesh and others3 and

        iv.     Order      in     W.P.No.12564    of    2001      dated

                09.09.2008.


8.      Per     contra     Smt.    Vasudha   Nagaraj,   learned    counsel

appearing on behalf of respondent Nos.4 and 5 contended that

the writ petition filed by the petitioners questioning the

1 2000(2) ALT 155 (D.B.) 2 2000(3) ALD 363 (D.B.) 3 2009(2) ALD 651

impugned show cause notice issued by respondent No.1 is not

maintainable under law and the same is liable to be dismissed

on the ground of maintainability alone.

8.1 She further contended that the subject property is situated

in the scheduled tribe area and the petitioners are non-tribals,

thus, they are not entitled to claim any rights over the property.

She also submits that the specific contention of the petitioners

that prior to the Regulations came into effect, they have

purchased the property from the grandfather of the respondent

No.3, the petitioners have failed to establish their claim by

producing any iota of evidence.

8.2 She further contended that the names of father and

grandfather of respondent No.3 were reflected in the revenue

records, village pahani in ownership column and possessor

column especially in the crucial years 1962-63 and 1963-64.

The sale transactions are subsequent to the enactment and the

same is clear contravention of the Regulations. The impugned

proceedings initiated by respondent No.1 is not hit by principles

of res judicata and the provisions of Regulations protects the

rights of the tribals.

8.3 The appellate authority while disposing the appeal CMA

No.1 of 2003 has given specific findings that father and

grandfather of respondent No.3 pleaded that their names were

recorded in the Pahani for the years 1959 to 2002 but they did

not file any documentary evidences nor Xerox copies of Pahani

in supporting their claim. The specific case of respondent No.3

is that due to unavailability of the records, his father and

grandfather were unable to produce necessary evidence before

the respondent No.1 in earlier proceedings which were held in

favour of the petitioners. As per the provisions of Regulations,

respondent No.1 has power to initiate proceedings basing on the

fresh material available on record and respondent No.1 has

rightly initiated the proceedings and issued the impugned

notice dated 03.01.2008. The petitioners without submitting an

explanation or counter to the said notice, straightaway

approached this Court and filed the present writ petition, which

is not maintainable under law.

8.4 In support of her contentions, thelearned counsel relied

upon the following judgments:

(i) GaddamRaghavulu Vs. Agent to Government

(Dist. Collector), E.G. Dist, Kakinada and others4

and

(ii) Special Deputy Collector (Tribal Welfare),

Rampachodavaram, East Godavari District and

others Vs. DatlaVenkapathiRaju and others5

9. Learned Assistant Government Pleader for Tribal Welfare

also contended that respondent No.1 has power to initiate the

proceedings under the Regulations basing on the new material

available. The impugned notice dated 03.01.2008 issued by

respondent No.1 is only a show cause notice and the writ

petition filed by the petitioners is not maintainable under law.

10. Having heard the learned counsel for respective parties

and upon perusal of the record, the following points would arise

for consideration:

1. Whether the writ petition filed by the petitioner questioning impugned show causenotice issued by respondent No.1 dated 03.01.2008 is maintainable under law?

2. Whether the impugned show cause notice dated 03.01.2008 is hit by principles of res judicata?

4 (1994) 2 An WR 216 5(2002) 4 ALT 669 (DB)

3. Whether the petitioners are entitled to any relief?

11. Point Nos.1 and 2:

11.1 It is undisputed fact that the land to an extent of

Acs.1.31 guntas in Survey No.228 of Bandarugudem village,

Manuguru Mandal, Bhadradri Kothagudem District is situated

in scheduled area and at the instance of father of respondent

No.3, respondent No.1 initiated the proceedings while

exercising the powers conferred under Regulations vide

CaseNo.24/83/MGR and the same was dismissed by its order

dated 02.02.1984. Thereafter, at the instance of grandfather of

respondent No.3, respondent No.1 initiated proceedings in

respect of land to an extent of Acs.1.31 guntas vide Case

No.238/87/MGR and the same was dropped by its order dated

04.12.1987 on the ground that earlier proceedings vide Case

No.24/83/MGR dated 02.02.1984 were already dismissed.

Thereafter, father of respondent No.3 once again initiated

proceedings before respondent No.1 vide case

No.1132/88/MGR and the said case was also dropped on the

ground of res judicata by its order dated 21.07.1992.

Thereafter, at the instance of respondent No.3, respondent No.1

initiated proceedings vide LTR Case No.86/2002/MGR against

the petitioners and others and respondent No.1 passed the

ejectment orders by its order dated 11.11.2002. Questioning

the said order the petitioners filed appeal in CMA No.97 of 2003

and the same was allowed and remanded to primary authority

for fresh enquiry. Questioning the said remand order the

petitioners filed W.P.No.11865 of 2005 before this Court and

the same was allowed on 06.06.2006 and questioning the said

order respondent No.3 filed W.A.No.877 of 2006 and the same

was dismissed with a liberty to respondent No.3 herein to seek

review of the order passed by learned Single Judge. Thereafter,

respondent No.3 filed review petition vide W.P.M.P.No.27217 of

2006 in W.P.No.11865 of 2005 and the same was dismissed on

21.12.2006. Aggrieved by the said order respondent No.3 filed

W.A.No.612 of 2007 and the same was dismissed on

09.08.2007 on the ground that respondent No.3 filed writ

appeal aggrieved by the order passed in review petition only

and respondent No.3 has not filed any appeal aggrieved by the

order dated 06.06.2006 and dismissed the appeal by observing

that:

"We are in complete agreement with the learned Single Judge that order dated 06.06.2006 does not suffer from any error apparent warranting its review. If the appellant felt aggrieved by order dated 06.06.2006, he should have challenged the same by filing appeal along with the order passed in review petition. By omitting to do so, he has disentitled himself from seeking a declaration that order dated 06.06.2006 suffers from a patent legal infirmity requiring interference under Clause 15 of Letters Patent."

In the result, the appeal is dismissed."

11.2 It appears from the record that respondent No.3 filed

petition under Section 3(1) of Regulations as amended by

regulation of 1970 before respondent No.1 and the same was

numbered as LTR Case No.50/2008/MGR wherein respondent

No.3 mentioned all the earlier proceedings including dismissal

of the Writ Appeal No.612 of 2007, stating that in earlier

proceedings before respondent No.1 and before this Court the

respondent No.3 could not succeed only on the ground that he

failed to produce the substantial evidence, though specific

contention of the father and grandfather of the respondent No.3

is that they have not alienated the subject property in favour of

the petitioner's father on the other hand, their names were

continued in the village pahani in pattadar Column and

occupants column, upto year 1993-94 particularly crucial year

1961-62 and 1962-63. He further stated that he secured

sufficient and valid documentary evidence to show that the

possession and enjoyment of scheduled land by the non tribal

petitioners is in contravention of the Regulations which was not

covered in earlier proceedings.

11.3 Respondent No.3 has not suppressed any factual

aspects including earlier proceedings of respondent No.1 and

earlier orders passed by this Court in W.P.No.11865 of 2005

dated 06.06.2006 and the orders passed in W.A.No.612 of 2007

dated 09.08.2007. The petitioners filed the present writ petition

questioning the impugned show cause notice issued by

respondent No.1 in LTR Case No.50/2008/MGR on the ground

of principles of res judicata.

11.4 Respondent No.3 specifically pleaded in his petition

LTR Case No.50/2008/MGR that he secured new material to

show and establish that the petitioners are in possession of

subject land in scheduled area which is in contravention of

Regulations. In GaddamRaghavulu case (supra) and in

Special Deputy Collector (Tribal Welfare) case (supra) this

Court specifically held that:

"The principles of res judicata or a principle analogous thereto shall be applied with caution and circumspection in dealing with a case arising under the Regulation meant for the protection of the

tribes. If the proceedings were dropped earlier for the reason that the 3rdrespondent-tribal could not produce sufficient evidence, it does not preclude a subsequent enquiry. Hence, I am not inclined to accept the contention of the learned counsel in this regard."

11.5 The specific contention of respondent No.3 is that in

the earlier proceedings respondent No.1 dismissed and dropped

the proceedings because the father and grandfather of

respondent No.3 did not produce sufficient evidence and father

of respondent No.3 has not given any statement before

respondent No.1. The judgments which are relied upon by the

learned counsel for the petitioners are not applicable to the

facts and circumstances of the case.

11.6 The contention of the petitioners that entertaining

petition filed by respondent No.3 and issuance of the impugned

show cause notice dated 03.01.2008 by respondent No.1 is hit

by principles of res judicata is concerned, the division bench

and learned Single Judge of this Court in the above judgments

specifically held that the principles of resjudicata or a principle

analogous thereto shall be applied with caution and

circumspection in dealing with a case arising under the

Regulation meant for the protection of the tribes. Hence, the

writ petition filed by the petitioners questioning the impugned

show cause notice dated 03.01.2008 issued by respondent No.1

is not maintainable under law. Insofar as the plea of res

judicata is concerned, the same has to be adjudicated by the

competent Court i.e., respondent No.1. Thus, point Nos.1 and 2

are answered accordingly.

12. Point No.3

12.1 It is already stated supra that the petitioners have

filed the writ petition without submitting explanation to the

impugned show cause notice dated 03.01.2008 issued by

respondent No.1.

12.2 In view of the same, liberty is granted to the

petitioners to submit explanation by raising all the grounds

which are raised in the present writ petition within a period of

six (6) weeks from the date of receipt of a copy of this order and

on such explanation, respondent No.1 shall pass appropriate

orders, in accordance with law, by giving opportunity of hearing

to the parties concerned. Till such time, the respondents are

directed not to take any coercive steps against the subject

property. Point No.3 is answered accordingly.

12.3 Accordingly, the writ petition is disposed of. No

costs.

As a sequel thereto, miscellaneous applications, if any,

pending in this writ petition shall stand closed.

_____________________________ JUSTICE J.SREENIVAS RAO

27thMarch, 2023 PSW