High Court for State of TelanganaWP/2200/2012allowed with costs

Banala Leelavathamma, v. The District Collector,

2017-06-02M.S.Ramachandra Rao20 pages

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.2200 of 2012 ORDER:

The subject matter of this Writ Petition is an extent of 111 ankanams with Sy.No.2048/A, Nellore Bit-I.

Originally, Ac.0.25 cents and Ac.0.87 cents in Sy.No.2048/A, Ac.1.57 cents in Sy.No.2049/A and Ac.0.84 cents in Sy.No.2049/C in Nellore Bit-I along with other land in the said Survey Numbers belonged to the Government. It was being used as Jail Camping ground and Central Jail was then situated at Nellore. 3.

This land was leased out by the Jail authorities to Kasukhela Hanumantha Rao, a resident of Nellore and an Advocate in 1898 for 5 years on an annual rent of Rs.37/-. The lease expired in 1903. Hanumantha Rao, however, continued in possession of the land. Later the Central Jail was shifted to Bellary. Certain proceedings were issued by the Revenue Authorities subsequently that after expiry of the lease, his occupation was considered as unlawful after 24-10-1908 and he should be evicted under the A.P. Land Encroachment Act, 1905. He filed appeal to Board of Revenue and sought for assignment of the land to him. It is alleged that in 1910 there was an assignment patta granted to him.

Hanumantha Rao died in 1916 without any issues. Before his death, he executed a Will bequeathing his properties in favour of his nephew and foster son by name Kasukhela Ramachandra Rao. He got

into possession of the properties by virtue of the Will and continued in possession of the same till he died on 29-10-1953. 5.

Kasukhela Ramachandra Rao had executed a Will dt.11-05-1953 bequeathing the plaint schedule and other properties in favour of his widow Kasukhela Subbayamma. She adopted one Raghurama Rao belonging to Kolluru family under registered adoption deed dt.24-06-1959 and after adoption he assumed the surname Kasukhela Raghurama Rao.

One Kolluru Narasimha Rao was the natural brother of Kasukhela Raghurama Rao.

Subbayamma executed a registered Will on 14-12-1970 in favour of Kolluru Narasimha Rao giving him half share in the above land and after her death on 12-12-1973, Kolluru Narasimha Rao succeeded to the half share in the property. The other half share belong to Kasukhela Raghurama Rao 8.

On 04-08-1969, the District Collector, Nellore ordered resumption of land of extent Ac.5.81 cents covered by Sy.No.2048/A,2049/C and 2049/D in possession of Kolluru Narasimha Rao and Kasukhela Raghurama Rao for the purpose of constructing A.C. Subba Reddy Sports Stadium. The District Revenue Officer issued proceedings on 24-02-1976 directing the Tahsildar, Nellore to take possession of the land.

O.S.No.59 of 1978 9.

Kolluru Narasimha Rao and Kasukhela Raghurama Rao filed O.S.No.59 of 1978 before the District Judge, Nellore against the State of Andhra Pradesh, represented by the District Collector, Nellore and one Nagareddy Harischandra Reddy, Secretary, A.C. Subba Reddy Stadium Committee, Nellore to declare that they are the absolute owners of the above property, that the order of resumption passed by the District Revenue Officer on 24-02-1976 is void and not binding on them and for a permanent injunction restraining the defendants from interfering with the plaintiffs possession and enjoyment of the plaint schedule property or in the alternative for possession of the properties. 10.

They contended in the suit that a patta was granted to Kasukhela Hanumantha Rao and even otherwise they acquired title by adverse possession to the said properties by virtue of their enjoyment of the same for over 65 years. They contended that the order of resumption passed by the District Revenue Officer is contrary to law and illegal and the possession of the plaintiffs cannot be disturbed. They stated that they filed W.P.No.1036 of 1976 in this Court and obtained interim orders of stay in W.P.M.P.No.1691 of 1976, but since they were advised to file suit before Civil Court, they filed the suit after issuing notice under Section 80 of C.P.C. to the District Collector, Nellore.

11.

Pending suit, Kolluru Narasimha Rao passed away and his legal heirs are brought on record.

12.

The State Government filed a written statement denying that Kasukhela Hanumantha Rao was the original owner or pattedar of the land and doubted the genuineness of the Wills executed by him in favour of Ramachandra Rao and the Wills executed by Ramachandra Rao and his widow Subbayamma on 11-05-1953 and 14-12-1970. It also denied that the plaintiffs had acquired title by way of adverse possession and alleged that their possession was permissive. According to the State Government, the suit lands were classified as Government lands and only a conditional lease for grazing purpose was granted to late Hanumantha Rao. It was contended that foundation stone for the construction of the stadium was laid in 1972, the land was leveled by operating bulldozers and construction of the stadium was made by spending large amounts by the 2nd defendant. 13.

State cannot be allowed to contend that the entry therein is not correct; and therefore in or about 1910, the subject land must have been assigned to late Kasukhela Hanumantha Rao and that he and his successors must have been in possession of the lands in their own rights, as absolute owners of the properties and not as lessees. 14.

It held that the State Government was guilty of not placing all relevant material in its possession before the Court in spite of a notice given to produce the documents and to admit or deny the documents produced by the plaintiffs. It held that the State Government did not produce Diglot register of Nellore Bit-I village or old No.10-1 account of the village and its contention that they were destroyed, cannot be believed. It therefore drew an adverse inference that they were not produced deliberately by the State Government since their production would be adverse to it and beneficial to the plaintiffs. 15.

It also held that the resumption order dt.24-02-1976 is not supported by reasons and was contrary to the direction of the High Court in its order dt.29-03-1975 in W.P.No.1775 of 1973 wherein the High Court set aside the order dt.04-08-1969 passed by the District Collector, Nellore and directed to pass fresh orders of resumption. It therefore set aside order dt.24-02-1976 of the District Revenue Officer.

16.

only for a public purpose. It held that once patta is granted absolutely recognizing the title of the occupier, and land revenue was collected regularly for 50 to 60 years, there cannot be any resumption and it violates the fundamental rights of a citizen to hold property absolutely. It advised the Government to follow the provisions of the Land Acquisition Act, 1894 to acquire the land if it was needed for construction of a sports stadium. It therefore restrained the State Government and the 2nd defendant in the suit from dispossessing the plaintiffs.

A.S.No.314 of 1979 17.

The 2nd defendant in the suit i.e. A.C. Subba Reddy Stadium Committee alone filed A.S.No.314 of 1979 before this Court and the State Government accepted the trial Court judgment. 18.

On 04-09-1987, the A.S.No.314 of 1979 was dismissed. This Court affirmed the findings of the trial Court about the grant in favour of Kasukhela Hanumantha Rao and also acquisition of title by adverse possession by him and his successors against the State Government. 19.

This judgment attained finality since no further appeal was filed by either the State Government or by the A.C. Subba Reddy Stadium Committee.

Meeting held on 30.6.1988 by the AC Subba Reddy Stadium Committee 20.

Subsequent to the judgment in A.S.No.314 of 1979, the A.C. Subba Reddy Stadium Committee, Nellore met on 30-06-1988 and

decided to offer other land to the successful parties in the appeal/suit or initiate proceedings under the Land Acquisition Act, 1894. But nothing was done in that regard.

THE FLOW OF TITLE TO PETITIONER FROM KASUKHELA SUBBYAMMA 21.

It is pertinent to note that even prior to the commencement of the above litigation, Kasukhela Subbayamma sold Ac.1.00 of land in Sy.No.2048/A ( forming part of the plaint schedule properties in the suit O.S.No.79/1958) on 10-10-1964 under registered sale deed No.2354 of 1964 to Survepalli Krishna Murthy; he divided the said land into house plots after making a layout; one Metta Krishna Reddy purchased plot No.1 admeasuring 151 ankanams through registered sale deed No.1203 of 1965 dt.04-06-1965; the said Metta Krishna Reddy alienated 61 ankanams to Machumalla Kanthamma and 50 ankanams to Madduru Hanumayamma through registered sale deeds Nos.128 of 1966 dt.20-12-1965 and 129 of 1966 dt.20-12-1965; and the said Machumalla Kanthamma and Madduru Manumayamma sold ankanams to petitioner by sale deeds dt.09-10-1966 (Doc.No.2014 of 1966) and sale deed dt.10-10-1966 (Doc.No.2084 of 1966). Thus the petitioner acquired title to 111 ankanams in Sy.No.2048/A of Nellore Bit-I.

THE CAUSE IN THE WRIT PETITION 22.

The 1st petitioner filed the Writ Petition alleging that this land was taken over for construction of A.C. Subba Reddy Stadium by

respondents, but no compensation has been paid as per the provisions of the Land Acquisition Act, 1894 nor was any alternative land provided. The 1st petitioner contended that the action of respondents in depriving her from enjoying her private land violates Article 300-A of the Constitution of India.

23.

Pending Writ Petition, she died and her legal representatives have been brought on record.

THE COUNTER AND ADDITIONAL COUNTER AFFIDAVIT BY RESPONDENTS 24.

A counter affidavit and an additional counter affidavit were filed by 1st respondent (The District Collector, Nellore) stating that the subject land apart from other land was alienated in favour of A.C. Subba Reddy Stadium Committee for construction of stadium as per orders dt.06-12-1976 in G.O.Ms.No.1296 and possession of the land was handed over to the Committee on 06-03-1976. 25.

It is not disputed that respondents had lost O.S.No.59 of 1978 before the Additional District Judge, Nellore in respect of an extent of Ac.3.53 cents in Sy.No.2048/A, 2049/A and 2049/C and that A.S.No.314 of 1979 filed before this Court by the Stadium Committee was also dismissed on 04-09-1987.

26.

The contentions raised by the respondents in O.S.No.59 of 1978 and which had been rejected in the judgment dt.23-01-1979 in that suit and which was confirmed in the judgment dt.04-09-1987 in

A.S.No.314 of 1979 have again been raised. It is not necessary to advert to these contentions which have been rejected already. 27.

It was contended that possession of land was handed over to the Stadium Committee on 06-03-1976; the land which is subject matter of the above litigation in the Civil Court was withdrawn from the Stadium Committee as per the orders of the Civil Court; since petitioner had purchased from Smt.Kasukhela Subbayamma in 1966, she should ask the said Subbayamma or her legal heirs to show the land or petitioner should file a civil suit against the said Subbayamma since the land claimed by the petitioner is not with the Government; that petitioners did not file any documents of title to prove their connection with the successful parties in O.S.No.59 of 1978; the petitioner kept silent for four decades and she filed the present Writ Petition claiming compensation for land which is not under the control of the Government;

THE CONSIDERATION BY THE COURT 28.

interfering with the plaintiffs possession and enjoyment of the plaint schedule property or in the alternative for possession of the properties. 29.

By judgment and decree dt.23-01-1979, O.S.No.59 of 1978 was decreed by the District Judge, Nellore. The Civil Court held after appreciation of evidence that the subject land stood in the name of Kasukhela Subbayamma as pattedar till 1969; that late Hanumantha Rao and his successors were in possession of the land till 1971 for over 60 years and such possession could only be under lawful title; though it was decided in 1909 by revenue authorities to evict him, later it was decided to assign the land to him on his representation; therefore there must have been an assignment of land to late Hanumantha Rao which is why in the 10(1) account issued on 30-09-1972, the name of Kasukhela Subbayamma is reflected; that the State cannot be allowed to contend that the entry therein is not correct; and therefore in or about 1910, the subject land must have been assigned to late Kasukhela Hanumantha Rao and that he and his successors must have been in possession of the lands in their own rights, as absolute owners of the properties and not as lessees. 30.

believed. It therefore drew an adverse inference that they were not produced deliberately by the State Government since their production would be adverse to it and beneficial to the plaintiffs. 31.

32.

It rejected the contention of the Government Pleader that there was only an assignment in favour of Kasukhela Hanumantha Rao and that it was entitled to resume the land even if it was granted on patta only for a public purpose. It held that once patta is granted absolutely recognizing the title of the occupier, and land revenue was collected regularly for 50 to 60 years, there cannot be any resumption and it violates the fundamental rights of a citizen to hold property absolutely. It advised the Government to follow the provisions of the Land Acquisition Act, 1894 to acquire the land if it was needed for construction of a sports stadium. It therefore restrained the State Government and the 2nd defendant in the suit from dispossessing the plaintiffs.

33.

This judgment was affirmed in A.S.No.314 of 1979 on 04-09-1987 by this Court and the said appeal filed by 2nd respondent was dismissed.

34.

The contentions raised by the respondents in O.S.No.59 of 1978 (which had been rejected in the judgment dt.23-01-1979 in that suit and which was confirmed in the judgment dt.04-09-1987 in A.S.No.314 of 1979) are not necessary to be considered since the bar of res judicata applies.

35.

Though it is contended that petitioners did not file any documents of title to prove their connection with the successful parties in O.S.No.59 of 1978, this allegation is not correct as the petitioners filed all link documents which are photocopies of sale deeds referred to above which have not been doubted by respondents. 36.

As stated above, Kasukhela Subbayamma sold Ac.1.00 of land in Sy.No.2048/A ( forming part of the plaint schedule properties in the suit O.S.No.79/1958) on 10-10-1964 under registered sale deed No.2354 of 1964 to Survepalli Krishna Murthy; he divided the said land into house plots after making a layout; one Metta Krishna Reddy purchased plot No.1 admeasuring 151 ankanams through registered sale deed No.1203 of 1965 dt.04-06-1965; the said Metta Krishna Reddy alienated 61 ankanams to Machumalla Kanthamma and 50 ankanams to Madduru Hanumayamma through registered sale deeds Nos.128 of 1966 dt.20-12-1965 and 129 of 1966 dt.20-12-1965; and the said Machumalla Kanthamma and Madduru Manumayamma sold

ankanams to petitioner by sale deeds dt.09-10-1966 (Doc.No.2014 of 1966) and sale deed dt.10-10-1966 (Doc.No.2084 of 1966). Thus the petitioner acquired title to 111 ankanams in Sy.No.2048/A of Nellore Bit-I.

37.

It is not disputed by respondents anywhere in the Counter that land claimed by petitioners was not part of the land covered by the resumption order dt.24-02-1976 of the District Revenue Officer which was set aside in the suit.

38.

Also in the minutes of the meeting held on 30-06-1988 (filed by respondents), it is clearly stated that the extent of Ac.3.53 cents which is subject matter of the suit O.S.No.59 of 1978 forms part of the land where the stadium exists and that the said land should either be acquired under the Land Acquisition Act, 1894 or alternative land must be provided to the decree holders.

39.

The allegation in the counter affidavit that possession of land was handed over to the Stadium Committee on 06-03-1976 is not correct in view of the judgment in O.S.No.59 of 1978. According to petitioners only in 2000-01 the land of petitioners was included in the pavilion in the stadium.

40.

A plea is raised that the land which is subject matter of the above litigation in the Civil Court was withdrawn from the Stadium Committee as per the orders of the Civil Court, but no material in

support of the said pleading is placed before this Court. So this plea is rejected.

41.

A further pleading is raised by the respondents that since petitioner had purchased from Smt.Kasukhela Subbayamma in 1966, she should ask the said Subbayamma or her legal heirs to show the land or petitioner should file a civil suit against the said Subbayamma since the land claimed by the petitioner is not with the Government. This is equally without merit since title of Kasukhela Hanumantha Rao and Subbayanmma was upheld in O.S. No.59 of 1978 and it is part of the land in which the stadium is built as explained above. 42.

No plea of adverse possession is raised by the respondents. So mere long possession by the respondents does not result in transfer of title to them. As held Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale1, :

"A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession." 43.

It is also not in dispute that nothing has been done by the respondents to give alternative land or initiate proceedings to acquire the same though the Civil Court directed the respondents to acquire the land if it is needed for the stadium and as admitted in the minutes of the meeting held on 30-06-1988 (filed by respondents). 1 (2009) 12 SCC 101

44.

Thus the respondents are trying to take advantage of their own wrong by opposing the claim of the petitioner. 45.

In Kusheshwar Prasad Singh v. State of Bihar2, the Supreme Court held:

"13. The appellant is also right in contending before this Court that the power under Section 32-B of the Act to initiate fresh proceedings could not have been exercised. Admittedly, Section 32-B came on the statute book by Bihar Act 55 of 1982. The case of the appellant was over much prior to the amendment of the Act and insertion of Section 32-B. The appellant, therefore, is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.

14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal3 wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).

15. In Union of India v. Major General Madan Lal Yadav4 the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. 2 (2007) 11 SCC 447 3 AIR 1961 SC 1353 4 (1996) 4 SCC 127

This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated: "It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."

16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the nonperformance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong"." 46.

The other pleading of the respondents is that the petitioner kept silent for four decades and she filed the present Writ Petition claiming compensation for land which is not under the control of the Government.

47.

I have no doubt that the conduct of the respondents in depriving the petitioner and her family members of the land purchased by them for valuable consideration for purpose of stadium is clear abuse of power even though the respondents had lost the civil suit against petitioner's vendor's predecessor Kasukhela Hanumantha Rao and Subbayamma. Their inaction to acquire the land in spite of observation in the decision of the Civil Court and in the meeting held on 30-06-1988 is clearly malafide. In such circumstances the plea of laches raised by respondents cannot be accepted.

48.

The Supreme Court in Uddar Gagan Properties Ltd. v. Sant Singh5, held that if there is fraud or abuse of law, laches is not a bar to entertaining a Writ Petition. It declared:

"22. While it is true that a belated petition cannot be entertained under Article 226 of the Constitution, it is well settled that this is only a rule of practice based on sound and proper exercise of discretion and not a jurisdictional bar. Exercise of discretion to quash an illegal action based on fraud or abuse of law even belatedly may not be liable to be interfered with under Article 136 of the Constitution. When the land sought to be acquired for a public purpose is allowed to be transferred to private persons, any administrative action or private transaction could be held to be vitiated by fraud16. There is no legal sanction for such action, as already explained.

23. It is well settled that use of power for a purpose different from the one for which power is conferred is colourable exercise of power. Statutory and public power is trust and the authority on whom such power is conferred is accountable for its exercise. Fraud on power voids the action of the authority17, 18. Mala fides can be inferred from undisputed facts even without naming a particular officer and even without positive evidence19. In the present case, abuse of power in dealing with the matter by the functionaries of the State is more than clear as rightly found by the High Court. Challenge to acquisition may not be confined to those who have not accepted the amount of compensation or consideration. Once such order/transaction is vitiated there could be no estoppel on the ground that compensation/consideration has been received, as the land loser has little choice in the face of acquisition20.

24. Acquisition of land is a serious matter. It may result in depriving a tenure-holder not only of his property but also his profession, livelihood and social security21. Even plight of investors in plots/flats in land covered by acquisition or 5 (2016) 11 SCC 378

litigation cannot be a ground to ignore illegal actions of depriving a farmer of his land22. As already observed, and is settled law, the State's power of compulsory acquisition cannot be used to enable a private entity to acquire title even if private person offers more compensation than the State23. It is also well settled that no legitimacy can be conferred to an abuse of power to advance a private purpose by invoking the doctrine of prospective overruling24.

25. We are also conscious of the legal position that under the scheme of the 1894 Act, the land losers get compensation as on the date of Section 4 notification. Any transfer of title thereafter for release of land to a person who is not owner on the date of notification under Section 4 can be viewed as abuse of power under Section 48 of the Act. Moreover, no such transferee can claim any right other than compensation. While notification under Section 4 of the 1894 Act may not prevent creation of an encumbrance on the land, such encumbrance does not bind the Government25."(emphasis supplied) 49.

Similar view has been expressed in K.B. Ramachandra Raje v. State of Karnataka6, where the Supreme court declared: "28. It has been vehemently argued on behalf of the respondents that the writ petition ought not to have been entertained and any order thereon could not have been passed as it is inordinately delayed and the appellant has made certain false statements in the pleadings before the High Court details of which have been mentioned hereinabove. This issue need not detain the Court. Time and again it has been said that while exercising the jurisdiction under Article 226 of the Constitution of India the High Court is not bound by any strict rule of limitation. If substantial issues of public importance touching upon the fairness of governmental action do arise, the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction by the Court."( emphasis supplied) 6 (2016) 3 SCC 422

50.

Therefore the plea of respondents that the Writ Petition should be dismissed on ground of laches is rejected. 51.

Since the land of 111 ankanams in Sy.No.2048/A of Nellore Bit-I belonging to the petitioners has been utilized for the A.C. Subba Reddy Stadium by the respondents without any authority of law and since at this point of time, it is not possible to direct restoration of the same to petitioners, it is just and necessary to direct the respondents as well as the State of Andhra Pradesh represented by Chief Secretary to initiate proceedings for acquisition of the same under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( for short "the Act ") and pay compensation to the petitioners under the said Act.

52.

For the above reasons, the Writ Petition is allowed with costs of Rs.10,000/- (Rupees Ten Thousand only) to be paid by respondents to the petitioners; a Writ of Mandamus is issued declaring the action of the respondents in utilizing the land of 111 ankanams in Sy.No.2048/A of Nellore Bit-I for the A.C. Subba Reddy Stadium as illegal, arbitrary and violative of Article 14 and 300-A of the Constitution of India; and the respondents as well as the State of Andhra Pradesh represented by Chief Secretary are directed to initiate proceedings for acquisition of the same under the provisions of the Act and pay compensation to the petitioners under the said Act. This

exercise shall be completed within four (04) months from the date of receipt of a copy of this order.

53.

As a sequel, the miscellaneous petitions, if any pending, shall stand closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 02-06-2017 Note : Copy to be marked to the Chief Secretary, Government of Andhra Pradesh.

B/o.

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