Telangana High Court

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

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

                                      1



        THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION Nos.5519 and 5520 of 2019

COMMON ORDER:

W.P.No.5519 of 2019 is filed challenging the action of 4th

respondent in passing the order dated 16.02.2019 in case

No.TWA1/147/2015, thereby omitting to consider the case in

TWA2/16/2019 as per TS/APSALT Regulation 1/1959 as without

jurisdiction, as the issue of tenancy rights claimed by the 6th and 7th

respondents in respect of property of an extent of Ac.5-22 guntas in

Survey No.136/190 of Mandamarri village and mandal, Mancherial

(formerly Adilabad) District, the ownership certificate under Section 38E

in Form No-II issued in favour of Sri Alluri (Kota) Pochaiah, sought for

cancellation under representation dated 19.06.2015 and 24.08.2015 is

pending before the respondent Nos. 2 and 3, detaching the case in

TW2/16/2019 is contrary to the provisions of AP(TA) Tenancy and

Agricultural lands Act, 1950 as wholly illegal, arbitrary, and violative of

Articles 19(1)(g), 300A of Constitution of India, with a view to demolish /

dispossess the petitioners from their respective houses consequently to

direct the 3rd respondent District Collector to take action forthwith on

the tenancy issue as per the representation dated 24.08.2015 of the

petitioners as per law, and until then no coercive steps against the

house property of the petitioners.

2. Similarly, W.P.No.5520 of 2019 is filed to declare the order dated

16.02.2019 of 2nd respondent made in case No.TWA1/147/2015 only

(served on 13.03.2019) by detaching the connected matter in

No.TWA2/16/2019 purported to have been passed under the provisions

of TS/APSALT Regulation 1/1959, for restoration of land to an extent of

Ac.0-30 guntas situated in Survey No.136/1/1 of Mandamarri village

and mandal, Mancherial (formerly Adilabad) District contrary to the

provisions of AP(TA) Tenancy and Agricultural lands act, 1950, as illegal

and arbitrary, and violative of Articles 19(1)(g), 300A of the Constitution

of India, with a view to demolish the petrol outlet and house and/or

dispossess the petitioner from the aforementioned property, and

consequently direct the 3rd respondent refraining to proceed with

further in all respects in pursuance of the order dated 16.02.2019 until

the other connected matter in No.TWA2/16/2019 is disposed of.

3. As both the writ petitions are connected, they are analogously

heard and are being disposed of by this Common Order. For the sake of

discussion, the recitals in W.P.No.5519 of 2019 are being taken.

4. Brief facts of the case, as per the averments in WP No.5519 of

2019, are that the property in Survey No.136 to an extent of Ac.13-19

guntas situated at Mandamarri village and mandal, Adilabad District

held to be as patta standing in the name of Smt.B. Butchamma, wife of

Late Venkata Narsinga Rao was subjected to protected tenancy rights

and the ownership under the provisions of AP(TA) Agricultural lands

Act, 1950. The tenants who are in actual cultivation and have found to

be eligible for grant of Ownership Certificate under Section 38-E,

A.P.(T.A) Tenancy Agricultural Lands Act, 1950. Accordingly Ownership

Certificates under Section 38E was granted in favour of various persons

over different extents of lands and they are entitled to acquire

Ownership Certificate under the provisions of the Act, 1950 as they are

found to be in personal cultivation for six years period during 1938 to

1954, and evidencing the same Kasra Pahani for the year 1954-55,

these persons names were recorded as tenants / occupants. The then

Tahsildar had granted Ownership Certificate under Section 38E after

thorough examination of preliminary report as well as final enquiry

report and their names were also entered into the Statutory Tenancy

the name of Kota (Alluri) China Posham and the extent available and

the certificates granted are equal and the issue was concluded. While

so, during the year 2009 for the first time the 5th respondent family

started claiming interest over the property and describing them to be

the successors of one Mr. Kota Pochaiah @ Alluri Pochaiah, which is

absolutely false. The Local Body intended to construct a library in

vacant land at Survey No.142 of the village, and it was objected and

they have even filed a civil suit in OS No.4 of 2009 on the file of Court of

Junior Civil Judge, Mancherial for declaration of title and recovery of

possession of property. In the said suit, the District Collector and

Tahsildar, Mandamarri, filed counter stating that the alleged PT

certificate by Alluri Pochaiah was cancelled as he did not cultivate the

same. There is no vacant land available and it is covered by houses and

purchased by various persons. The suit was dismissed by a decree

dated 18.11.2014. It is the case of petitioner that while the suit was

pending for consideration before the Civil Court, the 6th and 7th

respondents have approached the 5th respondent Tahsildar on

19.01.2013 seeking to implement the Section 38E certificate said to be

granted to Kota @ Alluri Pochaiah who was said to be father in law of 6th

respondent. The application was rejected by a Memo No.B/437/2013 by

Tahsildar stating that the land was in occupation of houses, petrol

outlet, Church, etc., and the suit is pending for adjudication. However,

subsequently, apparently on another application dated 16.05.2013, the

Tahsildar granted the same request without notice to the petitioner and

on the strength of this sanction of implementation of PT rights, the

respondents 6 and 7 started claiming rights over the property.

Thereafter, notices were received from 3rd respondent during the month

of October 2015 exercising the powers purported to have been

undertaken under the provisions of TS/APSALT Regulation, 1959,

Regulation 1/70 in case Nos.TWA1/147/2015 to the subject Survey

Number and Survey Number 135 in TWA1/150/2015. Apparently, this

was the subject matter before this Court in a writ petition and writ

appeal which were disposed of directing the 2nd respondent to resolve

the same after hearing the issue. Before the 2nd respondent, petitioner

No.12 appeared as party respondent and contested, and ultimately the

matter was remitted to the 4th respondent for consideration by an order

dated 31.10.2018. After the matter was remand to 4th respondent, a

notice dated 29.12.2018 was issued to the 11th petitioner directing him

to appear for enquiry scheduled to be on 05.01.2019 in case in

TWA1/147/2015. On receipt of it the 12th petitioner have appeared on

05.01.2019 and filed relevant documents and in the meantime

respondents 6 and 7 have proclaimed that the entire property in Survey

No.136, and orders will be issued by 4th respondent and on coming to

know of this, the petitioners have filed another petition before the 4th

respondent in TWA2/16/2019 duly enclosing entire documents relating

to tenancy and sales made by other PT holders including the ground

reality of our constructions of houses there on with permission of local

body. It is the case of petitioner that several applications were made to

concerned authorities for consideration of Tenancy issue as the

certificate implemented by the Tahsildar in favour of respondents 6 and

7 are false and fabricated as per original PT register. There is no such

PT and the total extent of PT land is only Ac.13-19 guntas and on seven

persons names the Ownership Certificates were issued and were sold to

various persons. All these facts were borne on record and evidenced as

per the report dated 16.01.2018 of Tahsildar, Mandamarri, submitted to

2nd respondent during the enquiry held in TAW1/147/2015. It is the

case of the petitioner the dispute raised in the complaint of 6th

respondent is purely Tenancy, Land Encroachment which are governed

by separate statutes. It is the further case of petitioner that the 4th

respondent without consideration of these aspects unilaterally decided

one case in TAW1/147/2015 against the 12th petitioner and discarded

the petitioners case. It is the case of petitioner that there are

discrepancy with regard to the claim of respondents 6 and 7 at their

convenience, wherever there is land available. Originally, in the civil

suit, it was claimed with specific boundaries and in the application

dated 19.01.2013 and 16.05.2013 in both they have claimed their

property from eastern side of Survey No.136 with the names of persons

said to be encroached their property. However, later they have

converted into multiple dimension completely changed their version and

claimed my property which is situated on western side of Survey

No.136. Further the family members of Original PT holders have also

joined in the enquiry and filed a petition in TAW2/16/2019, the 4th

respondent have issued notices to all of them and all of them appeared

and filed documents evidencing their possession and occupation and

the respondents 6 and 7 are not entitled and have nothing to do with as

the subject property claimed through the family of Alluri is not found in

original PT register, however, the 4th respondent did not consider the

said aspect. It is the case of petitioner that the subject property in

Survey No.136 is Ac.13-19 guntas and the land claimed by 4th and 5th

respondent is not available on ground, and this action of 2nd respondent

is illegal and violative of Article 300A of Constitution of India, in

addition to my right to carry the business guaranteed under Article

19(1)(g) inasmuch as the very origin of claim under PT is seriously in

dispute, and the dispute raised by the persons is not a Tribe and it is a

dispute between Non-tribe, and the rights under Protected Tenancy

issue is exclusive domain of Tenancy Court and Revenue Authority and

Agency authorities cannot have any jurisdiction to deal or amicably

resolve the same and to exercise the powers to pass orders. Nonetheless

the 4th respondent did not consider and unilaterally pass an order for

my ejection from the property to an extent of Ac.0-30 guntas discarding

the petitioner objections. Therefore, the entire exercise undertaken by

2nd respondent including the passing of order dated 16.02.2019 suffers

from lack of jurisdiction to recognize the tenancy rights over and above

the extent which is not available on ground without authority of law.

5. It is the further case of the petitioners that the order passed by

the 5th respondent-Tahsildar on 19.01.2013 rejecting the application of

respondents 6 and 7 and subsequently passing another order in same

dispute by reviewing earlier order is illegal and lacks jurisdiction, and

the 4th respondent ought to have taken this into consideration. It is also

the case of petitioners that their application is coming up with other

appeal and the 4th respondent herein has stated that the order passed

is not covering all parties and that once both the cases are clubbed

together and notices are issued, the 4th respondent ought to have

adjudicated the claim of petitioners, and hence the orders passed by the

4th respondent not legal and valid. It is the grievance of the petitioners

that they have constructed houses on the subject property, and the

efforts of respondents 4 and 5 in trying to evict the petitioners taking

advantage of situation that the petitioners case in TAW2/16/2019 was

not disposed of; and hence the action of 4th respondent suffer from legal

impediments.

6. Heard Sri B. Shankar, learned counsel for petitioners; and the

learned Government Pleader for Social Welfare.

7. Learned Government Pleader would contend that the submit that

against the impugned orders of 4th respondent, there is an efficacious

alternative remedy and this Court may not exercise its jurisdiction

under Article 226 of the Constitution of India when factual aspects are

involved for determination of rights under Agency laws.

8. Per contra, learned counsel for the petitioner relied on Whirlpool

Corporation v. Registrar of Trade Marks, Mumbai 1, Harbanslal

Sahnia v. Indian Oil Corporation Ltd. 2, Deputy Collector v. Venkata

Ramanaiah 3, Ashok v. Baba Rao 4.

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

"27. On a conjoint reading of Section 3(1)(a) and Section 3(2)(a), it becomes clear that the Section seeks to hit the transfers effected after the Section came into force and possession only under such invalid transfers is sought to be dealt with for the purpose of eviction of transferees and restoration of possession to transfers, as the case may be, under Section 3(2)(a) of the Regulation. Consequently, the alternative submission of learned senior counsel for the authorities that even though transfer of immovable property in the Agency tracts may not be hit by Section 3(1)(a) still possession under such transfers

(1998) 8 SCC 1

(2003) 2 SCC 107

(1995) 6 SCC 545

(2002 (5) ALD 824

could be restored to the original transferor under Section 3(2)(a), cannot be countenanced. Section 3(2)(a) is a corollary to Section 3(1)(a) and cannot have any independent role to play. Nor can it cover any area which is not encompassed by the sweep of Section 3(1)(a).

10. In Whirlpool Corporation (1 supra), it was held that the High

Court would not normally exercise its jurisdiction when there is

alternative efficacious remedy, however it is not a bar when

fundamental rights or where there has been violation of principles of

natural justice or proceedings are without jurisdiction or the vires of Act

are challenged.

11. In the instant case, it is pertinent to note that the dispute

revolves around scheduled tracts covered by the Regulations and the

transactions entered into between tribal transferors and non-tribal

transferees or even for that matter between non-tribal transferors and

non-tribal transferees, and their validity under Section 3(1) of the

Regulation, 1970. It is not the case of petitioner that the 4th respondent

has not followed the due process in passing the impugned order or

considering the material on record, whereas it is the grievance of the

petitioner that during the pendency of case, respondents 5 and 6 are

claiming rights over the land.

12. In South Indian Bank Ltd. v. Naveen Mathew Philip 5, it was

held as under:

Civil Appeal Nos.2861 and 2862 of 2023 dated 17.04.2023

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

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

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

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

13. In reply to para No.15 of the writ affidavit in WP No.5519 of 2019,

it is stated in the counter filed by respondent No.4 that it is false and

incorrect to say that the petitioner have no other effective alternative

remedy in fact there is an appeal provision under Section 3(a)(ii) of

APSALTR Act, 1959, and the petitioner without availing effective

alternative remedy directly approached this Court.

14. In reply to paragraph No.8 of the writ affidavit in WP No.5520 of

2019, it is stated in the counter filed on behalf of respondents 4 and 5,

that the entire allegations are false and denied. It is incorrect to say that

the dispute is within the exclusive domain of the Tenancy Court. That

the subject land is situated within the agency track the property if any

can only be sold to the tribals and not to the non tribals and such sales

are absolutely null and void under Section 3(1)(a) of APSALTR Act,

1959. Further in reply to paragraph No.9, it is stated in the counter

that the order dated 16.02.2019 of the respondent No.2 in File

No.TWA1/147/2015 is already enforced on 11.03.2019 by the Tahsildar

Mandamarri and possession was taken over by the 4th respondent and

the Tahsildar also submitted compliance report to the 2nd respondent

vide letter dated 11.03.2019. In reply to paragraph No.10, it is stated

that it is false and incorrect to say that the petitioner have no other

effective alternative remedy in fact there is an appeal provision under

Section 3(a)(ii) of APSALTR Act, 1959, and that the petitioner without

availing effective already directly approached this Court and misguided

the Court to grant interim order. As per Section 3(3)(a) of APSALTR

1959 Act the orders shall prescribe time limit for making an Appeal.

That, orders does not contain the Appeal time. In the orders it is not

stated that opportunity is given to party to engage an Advocate, file the

counter, lead evidence and advance arguments. The said case

commenced on 29.12.2018, wherein notices were ordered to appear on

05.01.2019 and from 05.01.2019, it is posted to 16.02.2019, only two

dates on the 16.02.2019 orders were pronounced). Further, the Court of

Special Deputy Collector, Utnoor, has pecuniary and territorial

jurisdiction to entertain the appeal since the disputed property situated

in Mandamarri village falls within the jurisdiction of Scheduled Area as

such as per the Apex Court Judgment passed in (2012) 11 SCALE 312.

15. Further, under the Telangana Scheduled Areas Land Transfer

Regulations, 1959:

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

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

16. In Harbanslal Sahnia v. Indian Oil Corporation Ltd. 6, it is

observed as under:

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