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2022 DIGILAW 314 (TS)

Banoth Ratna v. Special Deputy Collector

2022-04-25

SUREPALLI NANDA

body2022
ORDER : 1. Heard learned counsel for the petitioner and learned Government Pleader for Social Welfare. 2. This is a writ petition filed under Article 226 of the Constitution of India seeking a Writ of Mandamus declaring the action of the respondents in making attempts to dispossess the petitioner from the agricultural land admeasuring Ac. 1.22 gts in Survey No. 135/4 AA and Ac. 0.34 gts in Survey No. 135/5 in total admeasuring Ac. 2.16 gts situated at Chunchupally Village, Kothagudem Mandal, Khammam District (hereinafter referred to as subject land) on the basis of the orders issued by the 1st respondent in LTR case Nos. 117/2007/KGM and 118/2007/KGM, both dated 21.09.2007, as arbitrary, illegal and in violation of principles of natural justice. 3. The case of the petitioner is as follows: The petitioner is the owner and possessor of the subject land having purchased the same from one Bhukya Bojya under a simple Sale-Deed, dated 01.08.2005, for a total consideration of Rs. 1,00,000/- and ever since he has been in possession and enjoyment of the subject land. The petitioner got the land mutated in his favour and the pahani for the year 2006, 2007 shows that he is pattedar and possessor of the land. The petitioner and his vendor Bhukya Bojya belong to lambada community, which is notified Scheduled Tribe. While so, on 21.10.2008, the subordinates of the 2nd respondent came to the subject land and informed the petitioner that the 1st respondent had passed the impugned order of eviction and asked him to vacate the land within two weeks from that date or else he would be forcibly evicted from the land. The said impugned order was passed against one Mohammed Khasim, who is in no way concerned with the land and further the petitioner is not party to the eviction proceedings initiated by the 1st respondent and the impugned order was passed for ejectment of the respondent thereunder (Mohammed Khasim) or whomsoever in possession of the land. In fact, by the date of the impugned order, the petitioner was in possession of the land and no notice was given to the petitioner and thereby, the principles of natural justice are violated. 4. Learned counsel for the petitioner also brings to the notice of this Court, and also brings on record through the additional material papers filed into the Court the certificate of death, dated 19.11.2000 of Mohd. 4. Learned counsel for the petitioner also brings to the notice of this Court, and also brings on record through the additional material papers filed into the Court the certificate of death, dated 19.11.2000 of Mohd. Khasim against whom the impugned order of the 1st respondent in LTR Case No. 117/2007/KGM and 118/2007/KGM, dated 21.09.2007 is passed and admittedly a bare perusal of the same indicates that it is passed against a dead person. 5. The 1st respondent filed counter affidavit on his behalf and also on behalf of the 2nd respondent as well. Counter affidavit of the 1st respondent clearly evidences the fact of the enquiry being attended to by Bhukya Mohan S/o Bojya and not by the petitioner herein, who is in possession of the subject land as on the date of passing of the order dated 21.09.2007 by the 1st respondent herein. In the said counter affidavit the only contention raised is that the petitioner instead of agitating against the orders passed by the respondent No. 1 before the appropriate forum, the petitioner has filed the present writ petition. He admitted that Bokya Bojya, the vendor of the petitioner was owner and possessor of the subject land. The 1st respondent has not denied the fact that on 21.10.2008 his subordinates went to the subject land and informed the petitioner about the impugned order and asked the petitioner to vacate the subject land. The 1st respondent stated that he had no knowledge of the fact that the petitioner had purchased the subject land under a simple sale deed from his vendor, Bhukya Bojya. According to him, Abdul Khader S/o Mohammed Khasim and Bhukya Mohan son of the petitioner’s vendor Bhukya Bojya attended for the enquiry and the said Bhukya Mohan informed that his father had sold the subject land to Mohammed Khasim. 6. A bare perusal of the impugned orders would show that though there is no any documentary evidence to prove that the respondent had purchased the subject land from the petitioner’s vendor and that he was in possession of the land, the 1st respondent ordered eviction of not only Mohammed Khasim, but also any one, who is in possession of the land. The copies of the simple Sale-Deed, dated 01.08.2005 and the pahani for the year 2006, 2007 would clearly show that the petitioner had purchased the subject land from his vendor and was in possession and enjoyment of the land. Though the sale deed is not registered, it can be looked into since it is recited therein that the vendor had delivered possession of the land to the petitioner on the same date of the document. So both the documents, prima facie, would prove that by the date of the impugned order of eviction, the petitioner was in possession and enjoyment of the subject land. 7. Section 3 of the A.P. Scheduled Area Land Transfer Regulation, 1959 deals with transfer of immovable property by a member of a Schedule Tribe, and Rule 3(1)(a) and (2)(a) of the Act reads as under: Section 3(1)(a): Notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts 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 be absolutely null and void, unless such transfer is made in favour of person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Cooperative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes. Section 3 (2)(a): Where a transfer of immovable property is made in contravention of sub-section (1), the Agent, the Agency Divisional Officer or any other prescribed Officer may, on application by any one interested, or on information given in writing by a public servant, or suo motu decree ejectment against any person in possession of the property claiming under the transfer, after due notice to him in the manner prescribed and ma restore it to the transferor or his heirs. 8. A bare perusal of the above referred provisions also indicates the fact of issuance of notice to the petitioner as a mandatory pre-requisite prior to passing of an order of ejectment against any person in possession of the property. Admittedly, as borne on record the same is not followed in the present case. 9. 8. A bare perusal of the above referred provisions also indicates the fact of issuance of notice to the petitioner as a mandatory pre-requisite prior to passing of an order of ejectment against any person in possession of the property. Admittedly, as borne on record the same is not followed in the present case. 9. The 1st respondent ought to have issued notice to the petitioner before initiating the ejectment proceedings, because Rule 7(1) of the A.P. Scheduled Area Land Transfer Rules, 1969 (for short ‘the Rules 1969’) clearly mandates issuance of notice to any person in possession of the property claiming under transfer, to show cause as to why he should not be ejected. As stated above, the petitioner is claiming transfer of the land on the basis of a simple sale deed and has been in possession and enjoyment of the land, the 1st respondent by not issuing the notice as required under Rule 7(1) of the Rules, 1969 committed illegality and further without giving opportunity of hearing, caused violation of principles of natural justice. It is no doubt true that as per Section 3 Sub-Section (3) Clause (a), Sub-Clause 2 applies against the impugned order to the Agent. Though, statutory remedy is available, this Court has power to invoke the extra-ordinary jurisdiction under Article 226 of the Constitution of India, because the 1st respondent did not follow the procedure prescribed under law by not giving notice and a fair reasonable opportunity of hearing to the petitioner before passing the impugned order. 10. Admittedly, as borne on record, the petitioner is in possession and enjoyment of the subject land and got the subject land mutated in his favour and pahani for the year 2006-2007 shows that the petitioner is pattedar and possessor of the land and admittedly there is no notice or opportunity to the petitioner prior to the passing of the impugned order by the 1st respondent, dated 21.09.2007 in LTR Case No. 117/2007/KGM and 118/2007/KGM and therefore, the same is in clear violation of the specific procedure contemplated under Rule 7(1) and 7(4) of the A.P. Scheduled Area Land Transfer Rules, 1969. Therefore, this Court is of the opinion that the action of the respondents in making attempts to dispossess the petitioner from the agricultural land admeasuring Ac. 1.22 guntas in Survey No. 135/4 AA and Ac. Therefore, this Court is of the opinion that the action of the respondents in making attempts to dispossess the petitioner from the agricultural land admeasuring Ac. 1.22 guntas in Survey No. 135/4 AA and Ac. 0.34 cents in Survey No. 135/5 in total admeasuring Ac. 2.16 guntas at Chenchupally Village, Kothagudem Mandal, Khammam District, the basis of the orders of the 1st respondent dated 21.09.2007 is totally arbitrary, illegal, without jurisdiction and clear violation of principles of natural justice and above all totally unwarranted too. 11. The Hon’ble Apex Court in Whirlpool Corporation vs. Registrar of Trademarks, Mumbai, (1998) 8 SCC 1 held as follows: “Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” Also in Harbanslal Sahnia vs. Indian Oil Corporation Ltd. (2003) 2 SCC 107 held as follows: “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: (i) where the writ petition seeks enforcement of any of the Fundamental Rights. (ii) where there is failure of principles of natural justice (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged.” 12. In the present case, it is a clear failure of principles of natural justice, hence, the present writ petition is maintainable and the petitioner need not avail alternative remedy at this point of time. Therefore, the impugned order dated 21.09.2007 passed by the 1st respondent in LTR Case No. 117/2007/KGM and 118/2007/KGM are hereby set aside. However, liberty is given to the 1st respondent to proceed against the petitioner afresh, in accordance with law. 13. Therefore, the impugned order dated 21.09.2007 passed by the 1st respondent in LTR Case No. 117/2007/KGM and 118/2007/KGM are hereby set aside. However, liberty is given to the 1st respondent to proceed against the petitioner afresh, in accordance with law. 13. The writ petition is allowed accordingly. There shall be no order as to costs. 14. Pending miscellaneous applications, if any, shall stand closed.