WP/13870/2007 of J.T.Bhambhani, Vs Government of Andhra Pradesh represented by its on 30 December 2009

Conclusion

COMMON ORDER:

In these two writ petitions, common questions of law and fact arises forconsideration, therefore, they are being disposed of by this common order.W.P.No.13870 of 2007

The writ petition is filed seeking a Mandamus declaring the suo-motorevision of the 2[nd] respondent against the proceedings of 3[rd] respondent inNo.SEP3/654/82 dated 15.1.2003 as arbitrary, illegal and without jurisdiction.Under the impugned order dated 15.1.2003, the Collector, RangaReddy district was directed to implement the orders of the Apex Court dated29.1.1998 in S.L.P.Nos.1016 – 1018 of 1998 by handing over EvacueeProperty lands admeasuring Ac.2-16 guntas and Ac.1-04 guntas inSy.Nos.644 and 645 respectively at Uppal Kalan village, Ranga Reddydistrict to the allottees. The Collector was further directed to instruct theMandal Revenue Officer, Uppal to make necessary changes in the revenuerecords in favour of allottees. This order is sought to be reviewed by therespondents by issuing notice dated 20.8.2003 in Memo No.35846/JA/2003-1 by the Secretary to Government, Revenue Department, Government ofA.P. In a way, this is a second round of litigation.

The facts of the first round of litigation are as under:

One Shawaram Sukhramdas was a displaced person from Sind (nowin Pakistan) and was allotted agricultural land vide allotment Order No.Nal-29dated 12.5.1954 admeasuring Ac.712-8 guntas in Sy.Nos.9, 24, 28-35-38, 49to 52-73, situated at Chintalapalem village, Miryalaguda mandal, Nalgondadistrict. The said lands under allotment were evacuee properties. The actualand physical possession of the above land could not be delivered to thedisplaced person on account of the fact that it was in the possession of thirdparties including the protected tenants of the evacuees. The original allotteeMrs.Shewaram Sukhramdas died leaving behind three sons viz. TajumalShewaram, Salmatraim Shewaram and Bhagwandas Shevaram. The said

three sons also died. Petitioners 2 to 6 are the legal heirs of TejumalShewaram, petitioner No.7 is the legal heir of Salamatrai Shewaram andpetitioner Nos.1, 9 to 11 are the legal heirs of Bhagwandas Shewaram. Anextent of Ac.712.00 of land in Nalgonda district was allotted to the abovedisplaced person. In the correspondence of the District Collector, Nalgondain Letter No.C6/III/LP/76 dated 31.5.1976, he has informed the StateGovernment as also Government of India that while some of the land allottedin Nalgonda district was unsuitable for cultivation being covered by bouldersetc. and the other cultivable land is in occupation of protected tenants. As theGovernment of India had already delegated powers to the State Governmentauthorities, the displaced person was asked to deal with the matter with thelatter. While the powers of the Custodian General were delegated to the firstrespondent, the powers of the Custodian were delegated to the Secretary toCommissioner, Survey Settlement and Land Records, Andhra Pradesh. On6.10.1989, the Secretary to Commissioner, Survey, Settlement and LandRecords vide his proceedings No.CSS & LRR No.SEP-2/937/82 made anallotment of 24 standard acres out of anticlement of the displaced person of34 standard acres of Attewalli of Medchal mandal and the remaining 10standard acres were allotted in Uppal Kalan village, Uppal mandal of RangaReddy district. Questioning the same, W.P.No.3181 of 1990 was filed byMohd. Hasnuddin and though initially stay was granted, the same wasvacated on 20.6.1990 insofar as the land of the petitioners was concerned. By order dated 15.2.1991, the first respondent canceled the said allotmentorder passed by the Secretary to Commissioner, Survey, Settlement andLand Records on the ground that the land was already allotted to thedisplaced person in Nalgonda district and that the second allotment cannotbe made. Further, the jurisdiction of the Secretary to Commissioner, Survey,Settlement and Land Records was also question. The writ petition wasdisposed of holding that as substantive justice has been done by theCustodian Secretary to CSS & LR in allotting the alternate lands to thepetitioners and there was no double benefit conferred on the petitioners. Theimpugned order therein was set aside being hyper-technical (question of jurisdiction) and unsustainable (that there is a double benefit to the displacedpersons) reasons and the petitioners were held to be valid allottees consequent to the proceedings of Secretary to CSS & LR dated 6.10.1989 inSEP/2/937/82. The petitioners right over the lands allotted by the Secretaryto CSS & LR in his proceedings No.SEP/2/937/82 dated 6.10.1989 shall notbe interfered with and shall not be disturbed. The petitioners shall not beentitled to claim any rights in the lands at Nalgonda which were allotted videallotment No.NAL-29 dated 12.5.1954 and the said allotment pertaining to thelands at Nalgonda shall be held to be invalid and inoperative. The writpetition was thus allowed.

Aggrieved by the same, respondents carried the matter in W.A.Nos.37,43 and 54 of 1994 and the Division Bench of this Court disposed of the WritAppeals by common judgment dated 1.10.1997 as under:

“Since all contentions/issues in the instant appeals are basedon some issues of fact in respect of which, certain prima faciefindings are recoded by the learned single Judge, we are of the viewthat only reiteration and paraphrasing of the impugned judgmentalone, without deciding the issues of fact on the basis of suchevidence which is produced by either party, will not settle thecontroversy between the parties. We do not, for the said reason,intend to interfere with the impugned judgment, as learned singleJudge has observed that the appellants herein, if so advised, caninstitute such civil proceedings as are available under law. We,however, observe that any finding of fact recorded by the learnedsingle Judge except insofar as such admissions and pleadings whichare referred to in the impugned judgment, shall not be binding uponthe parties.

It is made clear however, that no party shall be precludedfrom raising any legal issue including the issue of maintainability, if soadvised, in any of the suits that parties may file”.

Aggrieved thereby, the Deputy Custodian General and Commissionerfor Survey, Settlement and Land Records, Hyderabad filed S.L.P.Nos.1016-1018 of 1998 before the Apex Court and the Apex Court dismissed the saidSLPs at the admission stage by order dated 29.1.1998. Thus, the ChiefCommissioner of Land Administration by proceedings dated 15.1.2003

directed the Collector, Ranga Reddy to implement the orders of the SupremeCourt dated 29.1.1998. Immediately, thereafter to nullify the attainment offinality of matter before the Apex Court, as noticed above, the Secretary toGovernment, Revenue (JA) Department issued Memo No.35846/JA/2003-1dated 20.8.2003 directing the petitioners to show cause as to why theallotment of evacuee property lands in Sy.No.644 and 645 of Uppal Kalanvillage and mandal, Ranga Reddy district under proceedings dated 15.1.2003 should not be cancelled, on the following grounds:

“All the records relating to the above subject matter have been calledfrom the office of the Chief Commissioner of Land Administration andverified with reference to the provisions of the Displaced Persons(Compensation and Rehabilitation) Act, 1954 and the rules framedthere under. The detailed examination revealed the followingirregularities in the allotment:from the office of the Chief Commissioner of Land Administration andverified with reference to the provisions of the Displaced Persons(Compensation and Rehabilitation) Act, 1954 and the rules framedthere under. The detailed examination revealed the followingirregularities in the allotment:

(a) Under Rule 34-E allotment of land in excess of Rs.10,000/-in value is not permissible. The present allotment has beenmade in contravention of Rules 34, 53 to 56. The landsallotted are worth Rs.2.50 crores approximately.in value is not permissible. The present allotment has beenmade in contravention of Rules 34, 53 to 56. The landsallotted are worth Rs.2.50 crores approximately.

(b) The petitioner’s claim to be persons displaced during thebreak of India into Pakistan and India proper. Some of theallottees were not even born then and do not satisfy thedefinition of displaced persons as seen from the applications.break of India into Pakistan and India proper. Some of theallottees were not even born then and do not satisfy thedefinition of displaced persons as seen from the applications.

(c) The orders appear to have been passed in a hurry withoutproper enquiry and without application of mind to the relevantlegal provisions and factual situation.proper enquiry and without application of mind to the relevantlegal provisions and factual situation.

(d) Some of the allottees figure in more than one order.”

Petitioners submitted their detailed explanation stating that firstly therespondents have no jurisdiction to rake up the issue again and again and nosuomoto revision can be entertained under the Displaced Persons(Compensation and Rehabilitation) Act, 1954 since the allotments weremade under 1950 Act. Even written submissions were filed as early as in theyear 2004, but no action was taken by first respondent till 2007. Therefore,petitioners filed the present writ petition.

In this regard, the learned Government Pleader strenuously contendedthat the petitioners having received notices and submitted their objections,could not have filed this writ petition and thus, the very writ petition is not maintainable.

On the other hand, the learned counsel for petitioners contended thatthe memo was issued on 20.8.2003 calling for explanation of the petitionersand immediately thereafter petitioners submitted their explanation and alsowritten arguments, but no orders were passed for over three long years.Therefore, they were forced to file the present writ petitions in 2007.

Though, a counter was filed in the year 2007 itself, but therespondents have not taken care to dispose of the objections filed on thequestions of sumoto revision entertained by the Government. This itselfshows the callous attitude of the respondents in dealing with the matter andharassing the petitioners, who are displaced persons from Pakistan, who losttheir property and belongings and came to India only to be Indians and to livein Indian Union, and such displaced persons were dealt with in this manner.

I am in full agreement with the submissions made by the learnedcounsel for petitioners that the displaced persons who were allotted withsome land and when the matter attained finality before the Apex Court, in theguise of suo moto revisional power under Section 24(4) read with Section 33of Displaced Persons (Compensation and Rehabilitation) Act, 1954,petitioners are again sought to be disturbed. Though the matter was pendingfor (7) years and even during the pendency of this writ petition, the objectionsfiled by the petitioners to the memo issued on 20.8.2003, there is noresponse. I am of the opinion that the writ petition in this shape ismaintainable in order to give a finality to the litigation. Thus, the objectionsraised by the respondents are not sustainable.

The other grounds raised by the petitioners while questioning theimpugned action of the respondents are;

(1) Displaced Persons (Compensation and Rehabilitation) Act, 1954has no application to the case of the petitioners.has no application to the case of the petitioners.

(2) Though the earlier litigation had already attained finality beforethe Apex Court between the parties, the same cannot be re-agitated and is hit by Doctrine of Res judicata.the Apex Court between the parties, the same cannot be re-agitated and is hit by Doctrine of Res judicata.

(3) The Doctrine of Finality has to be honoured in each and every case and no litigation shall be unnecessarily prolonged andagitated and re-agitated on the basis of some technicalities and onunreasonable grounds.

It is not in dispute that earlier when the jurisdiction of DeputyCustodian General and Commissioner for Survey, Settlement and LandRecords, Andhra Pradesh, Hyderabad was challenged before this Court, thisCourt held that the Deputy Custodian has no jurisdiction to deal with thematter. In fact, the respondents, by filing a detailed counter have stated that“the entire lands declared as Evacuee Property in the State of A.P. havebeen acquired by the Central Government under Section 12 of DisplacedPersons (Compensation and Rehabilitation) Act, 1954 as a result of which allthe evacuee property vests in the Central Government and they have beenpart of compensation pool under Section 14 of the Act, so as to be dealt withand utilized in accordance with the provisions of the Act and the Rules madethereunder only. From the date of acquisition of said lands under the Act, theAEP Act cannot be invoked for any purpose whatsoever and the only law thatgoverns these properties is the D.E. (C&R) Act, 1954 and the rules madethereunder”.

This was not accepted by this Court earlier in W.P.No.15320 of 1991,wherein it was held; “In any event of the matter, as the predecessors-in-interest ofthe petitioners were entitled for the allotment of the evacuee landsand as they were not inducted into possession of the allotted lands ofAdilabad district, and as their entitlement is not disputed, on technicalgrounds, I am not inclined to disturb the orders of allotment dated12.5.1989, as by doing so, the illegality and arbitrariness will beperpetuated as the displaced persons who are entitled for allotment oflands in a beneficial legislation would be deprived of the same byunnecessary and unwarranted legal proceedings and the protractionof the same. It is needless to mention that in exercise of theextraordinary powers contained under Article 226 of the Constitutionof India, this Court will always consider the substantive justice ratherthan technical one. As the substantive justice has been done by theSecretary to CSS & LR pursuant to the orders dated 10.4.1989 of the1[st] respondent and as I am convinced that no double benefit has been conferred on the displaced persons, I am constrained to setaside the impugned orders passed by the 1[st] respondent which areon hyper-technical (the question of jurisdiction) and unsustainable(that there is a double benefit to the displaced persons) reasons.”

These findings of the learned single Judge were confirmed by theDivision Bench in the Writ Appeal as well as by the Apex Court as noticedabove.

Now at this stage again, on the ground of suo moto revisional powers,the present action is initiated. In fact, the issues as to double allotment,jurisdiction and technical aspects and the entitlement of petitioners hadalready attained finality being part and parcel of the issues that arose forconsideration in the earlier writ petition W.P.No.15320 of 1991.

There must be some finality for any proceedings. The respondents inthe guise of some technicalities and availability of suo moto revisionalpowers, could not have initiated the impugned action, which is opposed totheory of Doctrine of Finality and Resjudicata. In this regard, the learnedcounsel for petitioner has rightly relied upon the judgment rendered by theApex Court in Special Leave Petition (C) No.29852 of 2009 (C.C.No.11768)in the matter of URBAN IMPROVEMENT TRUST, BIKANER v. MOHAN LAL, wherein the Apex Court held; “It is a matter of concern that such frivolous and unjustlitigation by governments and statutory authorities are on theincrease. Statutory authorities exist to discharge statutory functionsin public interest. They should be responsible litigants. They cannotraise frivolous and unjust objections, nor act in a callous andhighhanded manner. They cannot behave like some private litigantswith profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers actnegligently or in an overbearing manner. When glaring wrong acts bytheir officers is brought to their notice, for which there is noexplanation or excuse, the least that is expected isrestitution/restoration to the extent possible with appropriatecompensation. Their harsh attitude in regard to genuine grievancesof the public and their indulgence in unwarranted litigation requires tobe corrected.

This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideallitigants and should not put forth false, frivolous, vexatious, technical(but unjust) contentions to obstruct the path of justice.”

Whereas the learned Government Pleader appearing for respondents relied upon the judgment in CCT, ORISSA AND OTHERS v. INDIANEXPLOSIVES LTD.[[1]]and stated that 1950 Act is only an Act providingidentification of evacuee properties and their administration by variousdepartments, whereas under 1954 Act, the displaced persons would beidentified and allotment of lands would be made. Therefore, it cannot be saidthat the respondents have no authority to cancel the allotment made earlierwhile invoking suo-moto revisional powers available under Section 24 readwith Section 33 of 1954 Act. Even otherwise, in the present case, the actionis initiated on different grounds, such as;

1) Under Rule 34 E allotment of land in excess of Rs.10,000/- invalue is not permissible. The present allotment has been made incontravention of Rules 34, 53 to 56. The lands allotted are worthRs.2.50 crores approximately.

2) The petitioner’s claim to be persons displaced during the breakup of India and Pakistan and India proper. Some of the allotteeswere not even born then and do not satisfy the definition ofdisplaced persons as seen from the applications.

3) The orders appear to have been passed in a hurry withoutproper enquiry and without application of mind to the relevant legalprovisions and factual situation.

4) Some of the allottees figure in more than one order.

The learned counsel for respondents also drawn the attention of theCourt to the orders passed in W.P.No.16367 of 2003, wherein it is held thatsince the respondents have already filed objections and alternative remedy isavailable, the question of maintaining the present writ petition does not ariseand the petitioners were relegated to the original authority. The learnedcounsel for respondents also reminded the Court as to the scope of judicial review and drawn the attention of Court to the judgment in U.P. STATESPINNING CO. LTD. v. R.S.PANDEY AND ANOTHER[[2]], wherein it washeld; “Except for a period when Article 226 was amended by theConstitution (Forty-Second Amendment) Act, 1976, the powerrelating to alternative remedy has been considered to be a rule ofself-imposed limitation. It is essentially a rule of policy, convenienceand discretion and never a rule of law. Despite the existence of analternative remedy it is within the jurisdiction or discretion of the HighCourt to grant relief under Article 226 of the Constitution. At the sametime, it cannot be lost sight of that though the matter relating to analternative remedy has nothing to do with the jurisdiction of the case,normally the High Court should not interfere if there is an adequateefficacious alternative remedy.

.................There are two well-recognised exceptions to thedoctrine of exhaustion of statutory remedies. First is when theproceedings are taken before the forum under a provision of lawwhich is ultra vires, it is open to a party aggrieved thereby to movethe High Court for quashing the proceedings on the ground that theyare incompetent without a party being obliged to wait until thoseproceedings run their full course. Secondly, the doctrine has noapplication when the impugned order has been made in violation ofthe principles of natural justice. We may add that where theproceedings themselves are an abuse of process of law the HighCourt in an appropriate case can entertain a writ petition.

Where under a statute there is an allegation of infringement offundamental rights or when on the undisputed facts the taxingauthorities are shown to have assumed jurisdiction which they do notpossess can be the grounds on which the writ petitions can beentertained. But normally, the High Court should not entertain writpetitions unless it is shown that there is something more in a case,something going to the root of the jurisdiction………”

Further, it is stated that the established principles cannot be disturbedby the Court under Article 226 of the Constitution. In this regard, the learnedcounsel relied upon the judgment in UTTARANCHAL FORESTDEVELOPMENT CORPN. AND ANOTHER v. JABAR SINGH ANDOTHERS[[3]],wherein it was held; “In the instant case, the workmen have not made out anyexceptional circumstances to knock the door of the High Court

straightaway without availing the effective alternative remedyavailable under the Industrial Disputes Act. But the dispute relates toenforcement of a right or obligation under the statute and a specificremedy is, therefore, provided under the statute. The High Courtshould not deviate from the general view and interfere under Article226 of the Constitution except when a very strong case is made outfor making a departure. There are several decisions to the sameeffect. The respondents have not made out any strong case formaking a departure. Accordingly, the conclusion is inevitable that theHigh Court was not justified in entertaining the writ petition.

We are, therefore, of the opinion that the writ petitioners (therespondents herein) who have not invoked the jurisdiction of theTribunal are not entitled to any relief in the writ petitions. They are notentitled for any benefits of reinstatement, back wages and continuityof service.

On the other hand, the respondents in civil appeals arising outof special leave petitions as detailed infra who approached theTribunal and the High Court are entitled for the relief ofreinstatement……………”

The learned counsel for respondents further contended that the disputeraised in the earlier writ petitions is not the same as that of the present writpetition. Therefore, the question of applicability of Doctrine of Res judicataand Doctrine of Finality does not arise. I am not in agreement with thesubmissions made by the learned counsel for respondents. The issue thathad fallen for consideration in the earlier writ petition and in the present writpetition is one and the same. In fact, all these issues were raised eitherdirectly or indirectly in the earlier round and they attained finality and theState shall not be allowed to indulge in such repeated litigated on theunfounded grounds. Therefore, the Doctrine of Finality as well as Doctrine ofRes judicata are applicable in this case in its full force.

Be that as it may, it is important to notice that while disposing of WritAppeal Nos.37, 43 and 54 of 1994, this Court categorically held that therespondents are at liberty to work out their remedies by way of filing a Suitbefore the competent Civil Court. In fact, even according to the respondents,a suit was filed, however, the plaint was rejected as not maintainable underlaw. Being aggrieved thereby, the respondents have filed Appeal Suit before

this Court and the same is pending. In spite of the same, the presentproceedings were issued. This attitude of the respondents would indicatethat the respondents are bent upon to harass the petitioners on one ground orthe other. When they failed in the earlier round of litigation upto SupremeCourt, they filed a suit and the same was returned as not maintainable. Thepresent proceedings were initiated purported to be in exercise of revisionalpowers under the Act on some unreasonable grounds, after more than 20years of allotment. No details were given and even no proper explanationcould have been possible for the petitioners in view of vagueness ofgrounds raised. All the issues raised now as to the validity of allotment,eligibility or non-eligibility of the petitioners and others in this regardwere available to the respondents even in the course of earlierlitigation and nothing prevented them from doing so. Though such coursewas available, the respondents have not adopted the same and allowed thematter to attain finality before the Apex Court. Having done so, it is not properon the part of the respondents to rake up the issue again and again on someunreasonable and unfounded technical grounds as is found by the SupremeCourt as noticed above in URBAN IMPROVEMENT TRUST, BIKANER v.MOHAN LAL.

It is further interesting to notice that the petitioners were allotted landsin Athivelli of Medchal mandal and Uppal kalan villages. Both theseallotments were the subject matter of earlier litigation and attained finality. Even while invoking powers under Section 24 read with Section 33 of 1954Act purported to be under suo-moto revisonal powers, the respondents havenot initiated any action in respect of Athivelli village of Medchal mandal. Thepresent action is initiated only in respect of lands in Uppal kalan villages. The impugned notice was issued on 20.8.2003 and immediately thereafter,explanation was submitted which was pending before the respondents formore than four years. The writ petition was filed in the year 2007 and evenduring the pendency of writ petition till date, the matter was not disposed of,for which there is no explanation or excuse. Their harsh attitude in regard togenuine grievances of the public and their indulgence in unwarranted litigation requires to be deprecated. There should be some finality oflitigation somewhere, so that the private citizen can live in peace.

For all the above reasons, both the writ petitions are allowed and theimpugned orders are set aside. No order as to costs.

Date: 30.12.2009DA

______________

C.V.RAMULU, J

30.12.2009

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESHAT HYDERABAD

Date: 30[th] December, 2009

W.P.No.13870 of 2007Between:J.T.Bhambhani & others.

And

.. Petitioners

Government of Andhra Pradesh,rep. by its Chief Secretary,Secretariat, Hyderabad & others.

.. RespondentsW.P.No.19037 of 2007Between:A.Malla Reddy & others... PetitionersAndGovernment of Andhra Pradesh,rep. by its Secretary, Revenue Department,Secretariat, Hyderabad & others... Respondents [1](2008) 3 SCC 688[2](2005) 8 SCC 264[3](2007) 2 SCC 112