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2025 DIGILAW 1758 (TS)

Sodi Sayamma v. State of Telangana

2025-12-09

LAXMI NARAYANA ALISHETTY

body2025
ORDER : 1. This Writ Petition is filed to issue a writ of Mandamus declaring the proceedings vide RC.No.B/356/2019, dated 16.12.2019, issued by respondent No.2 in respect of agricultural land bearing Sy.No.55/88/A, admeasuring Acs.12.35 guntas situated in Kachanapalli Village, Bhadradri-Kothagudem District as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and the provisions of the Telangana Land Encroachment Act, 1905. 2. Heard Sri V.Raghunath, learned senior counsel appearing for the petitioner, and learned Assistant Government Pleader for Revenue appearing for the respondents. 3. By the impugned proceedings, respondent No.2 ordered the husband of the petitioner to vacate the subject land and handover the same to the Government. Aggrieved by the said order, the present Writ Petition is filed. 4. Concisely stated, the case of the petitioner, as averred in the writ affidavit, is that considering her poverty and as she belongs to scheduled tribe-koya community, she was issued Form-1B and pattadar passbook in respect of the subject land in the year 2019 and thus, she became absolute owner of the same. She got married to a muslim person and begot three sons and two daughters and that, all their children are following Koya customs and rites and they are identified as Koyas in their Village. While the things stood so, the respondents issued show cause notice under Section 7 of the Land Encroachment Act to her husband in respect of the subject land which stands in her name and that she apprehends that respondents-authorities may forcibly dispossess her from the subject land and hence, the present Writ Petition. 5. Learned counsel for the petitioner inter alia contended that albeit the subject land stands in the name of the petitioner, for which she was issued Form-1B and pattadar passbooks, the impugned proceedings were issued in the name of the husband of the petitioner, without serving any notice on the petitioner and without affording an opportunity of hearing to the petitioner. Thus, the respondents without following the due procedure prescribed under law, issued the impugned proceedings, which exhibits the arbitrary exercise of powers and also, there is violation of principles of natural justice and hence, the learned counsel prayed to allow the Writ Petition. 6. Thus, the respondents without following the due procedure prescribed under law, issued the impugned proceedings, which exhibits the arbitrary exercise of powers and also, there is violation of principles of natural justice and hence, the learned counsel prayed to allow the Writ Petition. 6. On the other hand, learned Government Pleader for Revenue inter alia contended that the petitioner, a schedule tribe, was granted pattadar pass book vide Khata No.123 in respect of lands total admeasuring Acs.24.30 guntas situated in various survey numbers of Kachanapally Village, but, she and her husband obtained another pattadar passbook in respect of the subject land vide Khata No.443 in respect of Sy.No.55/88 to an extent of Acs.12.35 guntas which is subject land claimed by the petitioner by playing fraud on the authorities and misconceiving the facts and further, the subject land was in possession and enjoyment of the husband of petitioner, who is a non-tribal, and as such, is not entitled to assignment of Government land as Kachanapally is a schedule area of Gundala Mandal, therefore, necessary action has been initiated against him under the provisions of the Land Encroachment Act, 1905. Learned Government Pleader further submitted that in the above factual scenario of the case, respondent No.2-Tahsildar has rightly passed the impugned proceedings under the Land Encroachment Act, 1905 (for short ‘the Act’) by following due process of law. He further submitted that the petitioner failed to make out any case warranting interference with the impugned proceedings. 6.1. Learned Government Pleader has principally contended that against the impugned order passed by respondent No.23- Tahsildar, remedy of filing an appeal before the Revenue Divisional Officer lies under Section 10 of the Act, however, the petitioner has straightaway approached this Court by filing the present Writ Petition bypassing the said remedy, and on that ground also, the Writ Petition is liable to be dismissed. 7. This Court has given its earnest consideration to the submissions advanced by learned counsel for both the parties. 8. Before delving into the merits of the case, this Court deems it appropriate to decide the maintainability of the Writ Petition. 9. Obviously, the impugned order was passed by respondent No.2-Tahsildar under Section 6 of the Act, in exercise of the powers conferred under the said Act. 8. Before delving into the merits of the case, this Court deems it appropriate to decide the maintainability of the Writ Petition. 9. Obviously, the impugned order was passed by respondent No.2-Tahsildar under Section 6 of the Act, in exercise of the powers conferred under the said Act. As per Section 10 of the Act, against a decision or order passed by a Tahsildar or Deputy Tahsildar under the Act, an appeal shall lie to the Collector. However, challenging the order passed by respondent No.2- Tahsildar, the petitioner filed the present Writ Petition bypassing the remedy of filing an appeal before the Collector. 10. In the above context, it is to be determined whether the Writ Petition is maintainable, and in order to decide the same, this Court ventures to examine whether the petitioner is entitled to file a Writ Petition in the face of availability of alternative remedy to challenge the impugned order. 11. As regards the doctrine of alternative remedy, it is a well- settled principle that the writ jurisdiction of the High Courts, under Article 226 of the Constitution, ought not to be exercised when an equally efficacious and statutory alternative remedy is available, except in exceptional circumstances, such as violation of principles of natural justice, absence of jurisdiction, manifest illegality or vires of Act is under challenge and that the Writ is filed for enforcement of fundamental rights. 12. This principle has been reiterated by the Hon’ble Supreme Court in the following cases: (1) Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 “Where a right or liability is created by statute which provides a specific remedy, such remedy must be pursued and not bypassed through a writ petition.” (2) Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569 “The High Court should not entertain petitions under Articles 226 and 227 when statutory remedies are available under the DRT Act.” (3) United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 “The High Court ought not to have entertained the writ petition as an effective alternative remedy was available under Section 17 of the SARFAESI Act... This rule applies with greater rigour in matters involving recovery of public dues and the dues of banks and financial institutions.” 13. This rule applies with greater rigour in matters involving recovery of public dues and the dues of banks and financial institutions.” 13. The Hon’ble Supreme Court has carved out certain exceptions where recourse to Article 226 may be taken despite the availability of an alternative remedy, viz., Violation of Principles of Natural Justice, Absence of Jurisdiction/Excess of Jurisdiction and Vires of the Action/Malafide/Arbitrary Exercise of Power. 14. Violation of principles of natural justice encompasses that impugned proceedings have been conducted in a manner that grossly violates the principle of audi alteram partem, i.e., no proper opportunity of hearing was granted prior to issuance of notice for taking steps under the Act. The reply/objection submitted by the party concerned was either not considered or rejected without reasons. Such non-speaking or mechanical rejection of objections violates statutory safeguards and principles of natural justice. 15. Absence of Jurisdiction/Excess of Jurisdiction includes the actions initiated by the authorities concerned which are without jurisdiction inasmuch as they do not conform to the statutory preconditions. 16. When the aggrieved party challenges the Vires of the Action/ Malafide/Arbitrary Exercise of Power by the authority concerned and alleges that the same amounts to an arbitrary exercise of statutory power, then the same attracts judicial review under Article 226, as per the law laid down in Whirlpool vs. Harbanslal Sahnia, (1998) 8 SCC 1 . 17. It is also the apt to refer to the observations made by the Hon'ble Supreme Court in Whirlpool Corporation (cited supra), which are as follows: “The High Court has imposed upon itself certain restrictions... One of such restrictions 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: (i) where the writ petition has been filed for enforcement of a fundamental right; (ii) where there has been a violation of the principles of natural justice; (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” 18. The Hon'ble Supreme Court further emphasized that where an alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere, unless there are good grounds therefor. 19. In addition to the aforesaid judgments, in Harbanslal Sahnia v. Indian Oil Corporation Ltd . The Hon'ble Supreme Court further emphasized that where an alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere, unless there are good grounds therefor. 19. In addition to the aforesaid judgments, in Harbanslal Sahnia v. Indian Oil Corporation Ltd . (2003) 2 SCC 107 , the Hon'ble Supreme Court has held as under:- “In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction... (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 is challenged. 20. In the light of the aforesaid ratio decidendi/proposition/ principle laid down by the Hon’ble Supreme Court in catena of decisions, as cited supra, it is well settled that where a right or liability is created by statute which provides a specific remedy, which is an effective and efficacious alternative remedy, such a remedy must be pursued and not bypassed through a writ petition and in such cases, the High Court should not entertain petitions under Articles 226 and 227 of the Constitution of India. 21. In the instant case, after issuing notice to the husband of the petitioner and after considering the reply submitted by him, the impugned proceedings are issued. In fact, having found the reply given by the husband of the petitioner not satisfactory and as he failed to substantiate his right and title over the subject property, the impugned proceedings were issued. Thus, the question of violation of principle of audi alteram partem does not arise in the instant case. 22. Further, the petitioner has not questioned/disputed the jurisdiction of respondent No.2 in issuing the impugned proceedings. Respondent No.2 is the competent authority under the provisions of the Act and he is empowered to issue the impugned proceedings under the said Act. Therefore, the present case does not fall under the exception of absence of jurisdiction/excess of jurisdiction, which entitles the petitioner to file Writ Petition bypassing the remedy of filing an appeal. 23. The third exception to bypass the remedy provided under a specific statute is when the party alleges vires of the action or arbitrary exercise of power by the authority concerned. 23. The third exception to bypass the remedy provided under a specific statute is when the party alleges vires of the action or arbitrary exercise of power by the authority concerned. From the facts and circumstances of the present case, this Court concludes that no malafide or arbitrary exercise of power by respondent No.3 in issuing the impugned proceedings has been pleaded or established by the petitioner. 24. In view of the above, this Court holds that the case of the petitioner does not fall under any of the above exceptions carved out by the Supreme Court for resorting to take recourse by way of filing Writ Petition under Article 226 of Constitution of India, despite availability of an alternative remedy. 25. The petitioner has an effective and efficacious remedy of filing an appeal under Section 10 of the Act before the Collector against the impugned order passed by respondent No.3 under Section 6 of the Act. The petitioner, without pursuing the said remedy of filing an appeal before the Collector against the impugned order, approached this Court by filing the present Writ Petition bypassing the specific remedy provided by the Act. 26. For the foregoing reasons and discussion, this Court is of the considered opinion that the present Writ Petition filed challenging the proceedings of respondent No.2 is not maintainable as the petitioner has evidently bypassed the remedy of filing an appeal as provided under the Telangana Land Encroachment Act and accordingly, this Writ Petition is liable to be dismissed. 27. Accordingly, this Writ Petition is dismissed. However, in order to meet the ends of justice, the petitioner is granted liberty to approach proper forum questioning the impugned proceedings. 28. As a sequel, interim order, 09.09.2020, shall stand vacated. Miscellaneous petitions pending, if any, shall stand dismissed. No costs.