M/S Ndl Infratech Pvt. Ltd. Having Its Registered v. State Of Telangana

HON'BLE SRI JUSTICE A.RAJASHEKER REDDY WRIT PETITION No.12024 OF 2016 ORDER:

This writ petition is filed seeking writ of mandamus declaring the action of the 2nd respondent in entertaining the Revision Petition No.E1/903/2016 filed by the 7th respondent under Section 166-B of the A.P (Telangana Area) Land Revenue Act, 1317 Fasli (for short 'the Act') and thereafter converting the same into Review Petition under Section 166 thereof as illegal, arbitrary and consequently to quash the proceedings File No.E1/903/2016 on the file of the 2nd respondent.

2. The petitioner company is the owner and possessor of an extent of Ac.4.16 gts out of Ac.7.00 gts of land purchased through registered agreement of sale-cumGeneral Power of Attorney bearing document No.3171/2008, dated 05.09.2006 and since then petitioner is in lawful possession and enjoyment of the said land. Subsequently, the petitioner company obtained four sale deeds, which were registered as document Nos.528/2009, dated 25.02.2009, 529/2009, dated 25.02.2009, 896/2009, dated 08.04.2009 and 1073/2009, dated 27.04.2009 in respect of land to an extent of Ac.3.35 gts leaving out the area covered by the internal road in the land purchased by it. Pursuant to the said sale deeds, entries in the revenue records were mutated in favour of the petitioner vide proceedings No.B/5018/2009, dated 19.05.2009. Thereafter, on the application of the petitioner, the 6th respondent granted permission for construction in a portion of the subject land vide building permit No.38567/HO/NZ/Cir-18/2014, dated 05.12.2014.

3. That the 7th respondent filed WP No.11058 of 2001 before this Court challenging the order of the 3rd respondent dated 19.04.2001 in Case No.F1/1402/1998 confirming the order of the 4th respondent refusing to grant ORC in respect of the land in Sy.No.194/8/1 admeasuring Ac.5.10 gts of Begumpet village. This Court, vide order dated 16.09.2008 allowed the said writ petition directing the 3rd respondent to grant ORC in favour of P.V.Narasimha Rao and others including the 7th respondent in respect of Ac.5.10 gts in Sy.No.194/8/1 of Begumpet Village. Pursuant to the order of this Court dated 16.09.2008, the 4th respondent issued ORC in favour of P.V.Narasimha Rao and others including the 7th respondent vide proceedings No.L/4838/2008, dated 15.04.2014 in respect of Ac.5.10 gts in Sy.No.194/8/1 of Begumpet village, which has been clearly

demarcated in the sketch appended thereto. The 7th respondent by suppressing all the material facts including the sketch appended to the said ORC filed Revision Petition before the 1st respondent under Section 166-B of the Act, before the 2nd respondent seeking to revise the No Objection Certificate (NOC) issued by the 3rd respondent vide letter No.E1/3838/2008, dated 15.03.2009 by arraying the petitioner herein and respondents 6, 8 & 9 as party respondents. The revision petition was filed on 25.02.2016 and notice thereof was served on the petitioner on 26.02.2016 requires to appear on 27.02.2016. The petitioner herein, who is arrayed as 6th respondent in the revision petition raised preliminary objection with regard to the maintainability of the Revision under Section 166-B of the Act on 11.03.

2016 by filing a separate interlocutory application seeking to reject the Revision Petition. Immediately after receiving the said IA and even before the service of notice on some of the other respondents in the main Revision Petition, basing on the oral request of the learned counsel for the Revision Petitioner, the 2nd respondent arbitrarily converted the said Revision Petition into Review Petition and directed the petitioner to file objections to the review vide docket order dated 11.03.2016. Aggrieved by the action of the 2nd respondent in converting the revision petition into review petition, present writ petition is filed.

4. Learned counsel for the petitioner submits that the 7th respondent herein who is review petitioner before the 2nd respondent is not a party to the proceedings in file No.E1/3838/2008, under which NOC dated 11.03.2016 was granted. He also submits that the rights of the 7th respondent are in no way affected since the Government has granted No Objection in respect of the lands pertaining to the petitioner. The subject land belongs to the petitioner and by granting NOC by the government in favour of the petitioner, no rights of the 7th respondent are affected. The impugned proceeding does not affect the rights of the 7th respondent and that she cannot be an aggrieved person against the said proceedings. Hence, she has n o locus standi to maintain the review petition. He also submits that the proceedings dated 15.03.2009 granting No Objection Certificate in respect of the lands belongs to the petitioner are not issued under the Act, as such, review petition is not maintainable under the said Act.

5. A perusal of the proceedings dated 15.03.2009 shows that it only indicates that the Government has conveyed its No objection and no rights of the parties are adjudicated by the Government, as such, the 7th respondent cannot have any

grievance in respect of the proceedings dated 15.03.2009 granted in favour of the petitioner. He also submits that it is not the case of the 7th respondent that the subject land belongs to the Government. He further contends that the limitation provided under Section 166 of the Act for preferring review is 90 days from the date of the order. However, in the instant case on hand, the review is barred by limitation, as the impugned proceedings in the review petition dated 15.03.2009. He further submits that the 7th respondent has knowledge about the impugned proceedings dated 15.03.2009 and same is stated in the revision petition filed by her before the 2nd respondent.

He further submits that though revision petition filed by the 7th respondent is barred by limitation, but the same is numbered without filing a petition for condoning the delay in filling the review petition, without any notice to the affected parties and without any justifiable cause. He also submits that the review is based on civil dispute between the private parties with regard to relative positioning of the land in Sy.No.194/1 and 194/8/1 of Begumpet Village, which has been observed by the Commissioner, SS&LR on 21.11.2011 and that the 2nd respondent has no jurisdiction to review the proceedings dated 15.03.2009. He further submits that neither the 2nd respondent nor the 7th respondents are entitled to unsettle things which were settled long back under the guise of review.

He further submits that no opportunity of hearing was given to the petitioner before converting the Revision into Review petition and conversion of Revision into Review Petition on oral request is erroneous. He further submits that at any rate the ingredients of Section 166 of the Act neither pleaded nor prayed by the 7th respondent and ex-facie impugned proceedings including docket order are illegal, unconstitutional and liable to be quashed. Under the guise of filing review petition, the 7th respondent is pressurizing the municipal authorities to tinker with permission for construction granted in favour of the petitioner, which has been granted in accordance with law.

He further submits that entertaining the present review under Section 166 of the Act by way of conversion from Revision filed under Section 166 to Review petition, is without jurisdiction and the said review is not maintainable against the impugned proceedings. In support of his contention, he relied on the judgment reported in Whirlpool Corporation v. Registrar of Trade Marks, [1] Mumbai .

6. On the other hand, learned Government Pleader for Revenue submits that the writ petition is not maintainable and the petitioner can raise the jurisdictional aspect

before the 2nd respondent, who can deal with the same. He submits that this Court need not interfere at this stage since factual aspects have to be gone into by the 2nd respondent before deciding the review filed by the 7th respondent. It is for the 2nd respondent to decide the issue. In support of his contention, he relied on the [2] judgment reported in Collector v. P.Mangamma .

7.

Sri V.Ravi Kiran Rao, learned counsel appearing for the 7th respondent submits that wrong provision of law is no ground to throw out the proceedings, which are otherwise maintainable and since review is maintainable under Section 166 of the Act, and that the 7th respondent sought conversion from revision into review and no exception can be taken to that effect. He submits that the petitioner has not produced the sketch along with the impugned proceedings dated 15.03.2009 and that these are factual aspects which can be gone into by the 2nd respondent. Mere entertaining of Review petition does not give cause action for the petitioner to file the present writ petition. He submits that the petitioner has obtained No Objection Certificate with wrong positioning of the land in Sy.No.194/1 belonging to the petitioner and land belonging to the 7th respondent in Sy.No.194/8/1, as such, Review Petition was filed to call for the records relating to:

1) Letter No.E1/3838/2008, date 15.03.2009 issued by the Joint Collector-1, Ranga Reddy District in response to the petition filed by Sri D.Seshagiri Rao i.e., Respondent No.4 on 02.06.2008 more particularly in so far as wrong sketch enclosed to the letter with regard to location of the land in Sy.No.194/1 as if the property in T.s.No.5, Block-E, Ward No.99 of Begumpet village in File No.E1/3838/2008 basing on the reports and false sketches by the Special Grade Deputy Collector and Revenue Divisional Officer vide Lr.No.D/4636/2008 dated 22.10.2008 and Lr.No.B/6034/2008, dated 10.10.2008 of the Deputy Collector and Tahsildar, Balanagar Mandal, Ranga Reddy District.

2) The report submitted by the Special Grade Deputy Collector and Revenue Divisional Officer vide Lr.No.D/4636/2008, dated 22.10.2008.

3) The report submitted by the Deputy Collector and Tahsildar, Balanagar Mandal vide Lr.No.B/6034/2008 dated 10.10.2008 as illegal and arbitrary, without jurisdiction and not supported by any authority under law and more particularly contrary to the judgments rendered by the Hon'ble High Court and Hon'ble Apex Court and also other authorities with regard to localization of lands; and

4) Declare the above mentioned letters issued by the Respondents 1 to 3 by enclosing wrong sketch maps with regard to location of the land in Sy.No.194/1 and 194/8/1 (my survey number) as illegal, arbitrary, without jurisdiction and not supported by any authority under law and more particularly contrary to the judgments rendered by the Hon'ble High Court and Hon'ble Apex Court and also other authorities with regard to localization of lands and pass such other further or other orders as the Hon'ble District Collector, Ranga Reddy may deem fit and proper in the circumstances of the case.

8. It is to be seen that admittedly, 4th respondent issued ORC in favour of

P.V.Narsimha Rao and others including the 7th respondent vide proceedings No.L/4838/2008, dated 15.04.2014 in respect of Acs.5.10 guntas in Sy.No.194/8/1 of Begumpet Village. It has been clearly demarcated in the sketch appended thereto. A perusal of the sketch also goes to show that the lands in Sy.No.194/8/1 and 194/1 are also shown. A perusal of the Review Petition filed before the 2nd respondent goes to show that the grievance of the7th respondent is regarding the positioning of the Survey Nos. i.e., 194/1 and 194/8/1. 9 . A perusal of the impugned proceedings dated 15.03.2009 filed in the Review Petition before the 2nd respondent shows that the Government only conveyed No Objection to subject lands of the petitioner basing on some reports, which are also sought to be reviewed by the 7th respondent.

By conveying No Objection, the Government has not decided the rights of any parties to the litigation. The impugned proceedings dated 13.03.2009 in the revision reads as follows: "With reference to the above, based on the reports of Spl. Grade Dy. Collector, & RDO, Chevella Division, Dy.Collector & Tahsildar, Balanagar Mandal and A.D.Survey & Land Records, R.R.district, it is to inform that, by virtue of G.P.A Holder through Registered Sale Deed the petitioner has came into possession. Hence the Government have no interest over the property in Sy.No.194/1, extent Ac.4.27 gts, situated at Begumpet Village, Balanagar Mandal for Bank Loan for construction purpose."

A perusal of the impugned proceedings goes to show that the Government had conveyed that it had no interest in the property in Sy.No.194/1 and it does not reflect under which provision of law it is issued. The 7th respondent had also not stated under which provision of law the impugned proceedings dated 13.03.2009 in the Revision Petition, is issued, as such, it can be safely presumed that it is not issued under any provision of law. By virtue of proceedings dated 13.03.2009, no rights of the 7th respondent are affected. As such, she has no locus standi to file the Review petition against the same. Consequently, she cannot be an aggrieved party as her grievance is not traceable to any enactment. As such, present review is not maintainable under Section 166 of the Act. Section 166 (6) of the Act reads as follows:

"166. Review:

(1)...

(2)...

(3)...

(4)...

(5)..

(6) No order or decision shall be reviewed which affects the mutual rights of the riot unless an application is filed by some party to the case and such application for review shall not be admitted unless it is filed within 90 days from the date of the order

or decision."

As per Section 166 (6) of the Act, review is only maintainable at the instance of party to the case. In the present case, 7th respondent is not a party to the proceedings dated 13.03.2009, which sought to be reviewed before the 2nd respondent and no rights of the 7th respondent are affected. Even according to the 7th respondent, she came to know about the impugned proceedings on 05.02.2013, which she admitted in the review petition filed before the 2nd respondent. On that ground also, review petition is not maintainable as the review is not filed within the stipulated time i.e., 90 days. Reading of Revision/Review Petition filed by the 7th respondent before the 2nd respondent goes to show that his grievance is about relative positioning of land in Sy.No.194/1 & 194/8/1.

11. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (supra), Hon'ble Supreme Court held as follows:

"15. 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. There is a plethora of case-law on this point but to cut down this circle of forensic ''whirlpool'', we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

16. Rashid Ahmad v. Municipal Board, Kairana1, laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commissioner2 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alter-native remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances.

17. Specific and clear rule was laid down in State of U.P. v. Mohd. Nooh3, as under : "But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.''

18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani & Anr.4 and was affirmed and followed in the following words: "The passages in the judgments of this Court we have extracted would indicate (1)

that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the exist-ence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief not-withstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."

19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies Distt. I5 laid down:

"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting (1) On application without jurisdiction under Section 34 I.T. Act."

20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court is entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "TRIBUNAL." As held by the Hon'ble Apex Court in the above referred decision, this Court has discretion to entertain or not to entertain the writ petition basing on the facts and circumstances. But this Court imposed certain self restrictions, one of which, if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But 'alternative remedy' has been consistently held by this Court not to operates as a bar in entertaining the writ petition.

So, the objection taken by the learned Government Pleader for official respondents as well as learned counsel for 7th respondent that the writ petition is not maintainable, cannot hold good. The decision cited by the learned Government Pleader for Revenue in Collector v. P.Mangamma (supra) relates to entertaining the revision after long lapse of time and in those circumstances, Apex Court held that original authority itself can decide the jurisdictional aspect.

the 2nd respondent by the 7th respondent have not decided the rights of the 7th respondent. Even the learned Government Pleader for Revenue has also not stated that the impugned proceedings dated 15.03.2009 issued by the Joint Collector-3rd respondent are also in any way affecting the interest of the Government. Even according to the learned Government Pleader, it is not the case of the official respondents that the Government is having interest in the subject land. In those circumstances, it is not known what is the lis to be decided by the 2nd respondent, when rights of the 7th respondent are not decided in the impugned order under review.

The attempt of the 2nd respondent to entertain the review after conversion of the same from Revision to Review on the oral request of the 7th respondent, without condoning the delay and without any legal foundation, is nothing but usurping the jurisdiction under Section 166 of the Act, as held by the Apex Court in the decision referred to above.

In view of above facts and circumstances, this writ petition is allowed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this writ petition, shall stands disposed of. _________________________ A.RAJASHEKER REDDY,J 28-06-2016 kvs

HON'BLE SRI JUSTICE A.RAJASHEKER REDDY WRIT PETITION No.12024 OF 2016 Date: 28.06.2016 kvs

[1] (1998) 8 SCC 1 [2] (2003) 4 Supreme Court Cases 488