*HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY +W.P.No.5419 of 2011 & C.C.No.392 of 2011 W.P.No.5419/2011 # Peela Lakshmi and others .. Petitioners Vs. $ State of Andhra Pradesh, Represented by its Principal Secretary to Revenue and Urban Land Ceiling Department, Hyderabad and others .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioners : Sri C. Ramachandra Raju ^ Counsel for respondent Nos.1 to 3 : Assistant Government Pleader for Revenue Counsel for respondent Nos.4 to 7 : Sri O. Manohar Reddy for Sri V.V. Satish ?CASES REFERRED: 1. (2008) 12 SCC 481 2. (2010) 2 SCC 114 3. (2010) 4 SCC 728 4.1998(5) ALT 259 5. (1982) 2 SCC 463 6. (2003) 2 SCC 111 HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.No.5419 of 2011 & C.C.No.392 of 2011 W.P.No.5419/2011 Between : Peela Lakshmi and others .. Petitioners And State of Andhra Pradesh, Represented by its Principal Secretary to Revenue and Urban Land Ceiling Department, Hyderabad and others .. Respondents Counsel for petitioners : Sri C. Ramachandra Raju Counsel for respondent Nos.1 to 3 : Assistant Government Pleader for Revenue Counsel for respondent Nos.4 to 7 : Sri O. Manohar Reddy for Sri V.V. Satish The Court made the following: COMMON ORDER: The Writ Petition is ﬁled for a mandamus to set-aside G.O.Ms.No.926, Revenue (UC.1) Department, dated 31-8-2009 issued by respondent No.1, by declaring that the same is without jurisdiction, gross abuse of power, highly arbitrary, malaﬁde and contrary to its own order dated 5-8- 2006, G.O.Ms.No.456, dated 29-7-2002, G.O.Ms.No.747, dated 18-6-2008 and the order of this Court dated 25-8-2009 in W.P.No.10947/2009. The petitioner sought for a further declaration that proceedings C.C.No.4567/76/B3, dated 19-9-2009 of respondent No.2 rejecting the petitioners’ representation as illegal and unsustainable. The petitioners sought for a consequential direction to respondent Nos.1 and 2 to regularize the extents of Ac.0-82 cents and Ac.6- 00 in old Sy.Nos.81/1 and 81/3, corresponding to new Sy.No.81/3P and patta No.165 of Marripalem village, Visakhapatnam Mandal and District in favour of the petitioners in terms of G.O.Ms.No.747, dated 18-6-2008. The Contempt Case is ﬁled by respondent Nos.4, 6 and 7 (hereinafter referred to as “the private respondents”) in the Writ Petition, to punish the writ petitioners under the Contempt of Courts Act, 1971. For convenience, the parties are referred as they are arrayed in the Writ Petition. One Josyula Bhuvaneshwar Das, father of respondent Nos.4 to 6, was the original owner of Ac.0-82 cents and Ac.6-00 cents, comprised in old Sy.Nos.81/1 and 81/3 respectively, corresponding to new Sy.Nos.81/3P and covered by patta No.165, Marripalem village (hereinafter referred as “the subject land”). The petitioners pleaded that one Yellapu Raghavamma purchased the subject land under sale deed dated 18-10-1965 from the said Bhuvaneshwar Das. The petitioners claimed right and possession over the subject land through the said Yellapu Raghavamma, who appears to be the mother of some of the petitioners. They pleaded that after the death of Yellapu Raghavamma, the petitioners have divided the subject land among the family members and constructed seven houses thereon; that the houses were assessed to municipal tax, water tax etc., and separate house numbers were assigned; that the petitioners were availing power supply, telephone connection, water supply and getting civil supplies and that the names of the petitioners were mutated in the revenue records maintained by respondent No.6. In the year 2008, respondent No.2 issued notices to the petitioners stating that the lands shown therein are surplus lands under the Urban Land (Ceiling and Regulation) Act, 1976 (for short “the ULC Act”), calling upon them to seek regularization of their possession. The petitioners ﬁled W.P.No.10947/2009 wherein they have inter alia averred that they are the absolute owners and possessors of the extent of Ac.6-82 cents inherited from their mother; that neither the petitioners have ﬁled any declaration under the ULC Act nor they are parties to the ULC proceedings; that they made a representation on 28-8-2008 to the authorities under the ULC Act explaining the circumstances under which they became the owners of the subject land and that therefore they are not liable to be evicted. Respondent Nos.4 to 7 herein were impleaded as respondent Nos.8 to 11 in the said Writ Petition. They have pleaded that their ancestor J. Anantha Padmanabha Das ﬁled declaration under the ULC Act in respect of entire surplus land which includes the subject land and that the application of those respondents for regularization of their possession is pending. The said Writ Petition was disposed of by order dated 25-8-2009 directing the authorities under the ULC Act to consider representation dated 28-8-2009, purported to have been made by the petitioners and pass orders within a period of two months from the date of receipt of the order after hearing of the parties concerned. It was further directed that till disposal of the representation, the respondents shall maintain status quo as to the possession of the petitioners. Respondent No.1 has issued G.O.Ms.No.926, Revenue (UC.1) Department, dated 31-8-2009, whereby it has allotted the excess land, including the subject land, taken possession by it under the provisions of the ULC Act, in favour of the private respondents. The petitioners have ﬁled C.C.No.246/2010 alleging willful disobedience of order of this Court dated 25-8-2009. The said Contempt Case was closed by placing on record the representation made on behalf of the ULC authorities that the order in W.P.No.10947/2009 was implemented by passing order dated 19-9-2009, rejecting the petitioners’ claim for regularization of the land, except to the extent of 200 sq. yards. While closing the Contempt Case, this Court has left the petitioners free to workout their remedies. Accordingly, the petitioners have ﬁled the present Writ Petition. The petitioners have pleaded that regularization of the subject land in favour of the private respondents is illegal, arbitrary and malaﬁde; that G.O.Ms.No.747, dated 18-6-2008, under which allotment of subject land has been made to the private respondents envisages regularization of land only in favour of third parties who are in possession and the same has no application to the declarants or persons claiming through them; that G.O.Ms.No.747, dated 18-6-2008, must be construed to be in consonance with the provisions of Urban Land (Ceiling and Regulation) Act, 1976, Repeal Act 1999, and so construed, no regularization of land in favour of the declarants who are deemed to have been dispossessed could be made; that the claim of the private respondents was rejected earlier under G.O.Ms.No.456 dated 29-7-2002 and therefore the said order having become ﬁnal, the impugned G.O. is in the teeth of the said order; that under G.O.Ms.No.747, dated 18-6-2008, any claim must be made on or before 30-8-2008 and the applications ﬁled by the private respondents, much later, should not have been entertained; that the impugned G.O. is contrary to G.O.Ms.No.747, dated 18-6-2008; that the impugned G.O. was issued on the recommendation of respondent No.2 who colluded with the private respondents and that the application of the private respondents was made nine months after expiry of due date and on the same day of receiving the applications, respondent No.2 has submitted report after her purported visit to the subject land. The petitioners pleaded that one Yellapu Eswar Rao was their General Power of Attorney (GPA); that they came to know that the said person has ﬁled W.P.No.20759/2009 questioning the validity of the impugned G.O. and that he has withdrawn the same for the reasons best known to him. The petitioners have further averred that they have never authorized the said Eswar Rao to ﬁle the said Writ Petition and at the time of ﬁling of the said Writ Petition, he was not the GPA as they have cancelled his power by issuing a registered legal notice dated 11-9-2009 and that therefore the order in W.P.No.20759/2009 does not bind them. The petitioners alleged that according to their reliable information, their former GPA colluded with the private respondents to the detriment of their interests and that therefore they have cancelled the GPA. The oﬃcial respondents have not ﬁled their counter-affidavit. During the hearing of the case, the petitioners ﬁled W.P.M.P.No.33259/2011 to call for vigilance report from respondent No.1 on various allegations made against respondent No.2, including the illegality committed by her in regularizing the subject land in favour of the private respondents. On this Court directing the oﬃcial respondents to justify their stand, respondent No.2 ﬁled an aﬃdavit wherein it is inter alia stated that the Inspector of Police, Anti-Corruption Bureau (ACB), Visakhapatnam called for original ﬁles pertaining to various lands including the subject land; that accordingly all the documents pertaining to the subject land were sent to the Inspector of Police, ACB, and that in view of the same, the oﬃce of respondent No.2 was unable to send para-wise remarks to the learned Government Pleader for filing the counter-aﬃdavit. It is further stated that letters were addressed by the oﬃce of respondent No.2 on 14-6-2011 to the Deputy Superintendent of Police, ACB, and to the Director General, ACB, on 18-9-2011, with a request to them to direct the ACB oﬃcials to provide the original records pertaining to the subject land and that the reply is awaited. On the oral directions of this Court, the learned Assistant Government Pleader for Revenue (Assignment) produced the ACB report in a sealed cover on 31-10-2011. Responding to the application of the petitioners for placing the Vigilance report before the court, the Deputy Secretary to the Government, Revenue, ULC Department, ﬁled an aﬃdavit along with the Vigilance report. He stated therein that in all 12 allegations were levelled against respondent No.2; that allotment of the subject land relates to item No.12 and that the General Administration (Vigilance & Enforcement) Department, after a thorough investigation and veriﬁcation of records, found that the allegations relating to item No.12 are not substantiated.. A detailed counter-aﬃdavit is ﬁled on behalf of the private respondents. At to the outset, an objection was taken in the counter-aﬃdavit as to the maintainability of the Writ Petition in the face of dismissal of W.P.No.20759/2009 as withdrawn on 12- 10-2009. The counter-aﬃdavit has taken exception to the conduct of the petitioners in suppressing material facts. It is alleged that the plea of the petitioners that W.P.No.20759/2009 was ﬁled and withdrawn by their GPA without their instructions and that the GPA was cancelled by them by issuing registered notice on 11-9-2009, is false and invented to get over the dismissal of the earlier Writ Petition. It is further averred that the GPA of the petitioners ﬁled O.S.No.1109/2009 on 21-8-2009 in the Court of the learned III Additional Junior Civil Judge, Visakhapatnam, for the relief of permanent injunction; that in the said suit the private respondents are impleaded as defendants; that an exparte injunction was granted by the trial court on 24-8-2009; that after receipt of the said order by the private respondents, the elders known to both the parties have intervened and advised them to settle the issue as the litigation in the Civil Court will be unnecessarily prolonged and that on such intervention, the private respondents have paid Rs.30 lakhs to the petitioners/plaintiﬀs at the rate of Rs.50,000/- each to the petitioner Nos. 1, 2, 5 to 8 and Rs.23 lakhs to their GPA. It is also averred that in pursuance of the said settlement, the petitioners have made an application for regularization of the land and respondent No.2 has passed the impugned order whereunder the possession of the petitioners, only to the extent of 200 sq. yards, was regularized; that after receipt of the amount of Rs.30 lakhs through demand drafts by the petitioners, an application was moved by their GPA before the competent authority on 24-9-2009 stating that they have no objection for regularization of the remaining land in favour of the family of the private respondents; that a memo was ﬁled in the Court of the learned III Additional Junior Civil Judge, Visakhapatnam on 29-9-2009 for advancement of the suit and accordingly the suit was advanced by the Court and that after examining the parties, the same was dismissed as not pressed. The counter-aﬃdavit further averred that after dismissal of the suit, the petitioners have produced interim order dated 24-9- 2009 passed by this Court in the present Writ Petition and have demanded further amounts for compromise; that accordingly the private respondents have paid a sum of Rs.6,50,000/- to petitioner No.4, Rs.5,50,000/- to petitioner No.5 and about Rs.47,00,000/- to the GPA holder, son and son- in-law and that after receiving the said amounts, the petitioners have got W.P.No.20759/2009 dismissed as withdrawn on 12-10-2009. It is also averred that the entire amount was paid by way of demand drafts and that the same have been encashed by the petitioners. It is further averred in the counter- aﬃdavit that the petitioners again started demanding money and when the private respondents refused to meet their demand, the petitioners have ﬁled C.C.No.246/2010 and that on coming to know about ﬁling of the said Contempt Case, a detailed counter-aﬃdavit was ﬁled wherein the above mentioned facts were stated. The said Contempt Case was thereafter closed. The private respondents have alleged that the petitioners deliberately suppressed these facts. These respondents also seriously denied the stand of the petitioners that they have cancelled the GPA of Yellapu Eswar Rao through registered notice dated 11-9-2009 by averring that even though they have stated that the notice of the cancellation of the GPA was sent through registered post, the petitioners have ﬁled a copy of the notice sent through certiﬁcate of posting. The private respondents termed the said notice and the certiﬁcate of posting as concocted documents pressed into service with a mala ﬁde intention. The private respondents reserved their right to ﬁle a detailed counter-aﬃdavit on merits, if necessary, after considering their preliminary objection on the maintainability of the Writ Petition for suppression of material facts by the petitioners. A reply aﬃdavit has been ﬁled by the petitioners to the above mentioned counter- affidavit. While reiterating their plea that the oﬃcial respondents have colluded with the private respondents, the petitioners have admitted that they have ﬁled O.S.No.1109/2009 in the court of the learned III Additional Junior Civil Judge, Visakhapatnam against the private respondents for permanent injunction; that their former GPA has got the said suit dismissed as not pressed by ﬁling a memo after cancellation of power of attorney without their knowledge. The petitioners asserted that they were not present in the court on 29-9-2009 as observed by the Civil Court in its Judgment in the said suit; that the memo allegedly ﬁled before the Civil Court in the said suit for not pressing the same was not signed by them; that the said memo was ﬁled by their former GPA behind their back; that as the dismissal of the suit took place at the instance of an unauthorized person, the order of the Civil Court is not binding on them and that the petitioners filed an application before the Civil Court for setting aside the order dismissing the suit and that the same is pending. The petitioners denied their entering into compromise with the private respondents at the intervention of the elders and their receiving monies in furtherance of such compromise. It is averred that their GPA had pressurized the petitioners to enter into an agreement of sale with the respondents for alienating the land and accordingly they have entered into an agreement of sale on 5-10-2009; that the private respondents have paid the amounts as speciﬁed “in their aﬃdavit” towards advance money of sale transaction making them believe that they will pay the balance sale consideration at the time of registration and that whatever amount that was received from the private respondents is only an advance amount pursuant to the agreement of sale but not towards the alleged compromise. It is further stated that at the time of paying the advance amount of sale consideration, the private respondents have obtained the petitioners’ signatures on various blank stamp papers and blank white papers, making them believe that their signatures are required for the purpose of sale transaction, but unfortunately the private respondents have fabricated documents styling them as compromise memo using their signed blank stamp papers and that even though Yellapu Eswar Rao is one of the co-owners along with the petitioners, the fact of payment of huge amount to him by the private respondents shows beyond doubt that the said person has colluded with the private respondents, detrimental to their interests. The petitioners further alleged that the private respondents also managed their GPA to address letter dated 24-9-2009 to respondent No.2 conveying their no objection for regularizing the land in favour of the private respondents and therefore the said letter does not bind them; that after coming to know about the collusion of the private respondents with their GPA, the petitioners got a registered legal notice issued on 25-3-2011 to the private respondents canceling their agreement of sale and expressing their willingness to refund the amounts received by them towards advance sale consideration and that no reply was given by the private respondents to the said notice. The petitioners have expressed their readiness and willingness to pay back the advance amounts received by them to the private respondents. As regards possession, the petitioners have explained the apparent inconsistency in their stand taken in the contempt case and the aﬃdavit ﬁled in this Writ Petition. They sought to explain the same by stating that even though in the contempt case they have stated that the private respondents have highhandedly dispossessed them from possession of the land on 2-10-2009, as they had no right to dispossess the petitioners they have taken back possession of the land on 7-2-2010 in pursuance of the interim order of this Court immediately, after lodging a police complaint and with the help of police and other well-wishers. This case was posted before my learned brother Nooty Ramamohana Rao.,J. A perusal of the proceedings sheet shows that the case underwent as many as ten adjournments between 14-7-2011 and 29-8-2011. On 29-8-2011, the Hon’ble Judge had adjourned the case by passing the following order: “Though Sri O. Manohar Reddy, appearing on behalf of Sri B.V. Satish, opposed any further adjournment in the matter, as the situation is getting out of hand pursuant to the interim order passed by this Court, I consider it appropriate to adjourn the matter to 2nd September 2011, as requested, on behalf of Sri C. Ramachandra Raju. It is made clear that no further adjournment would be accorded in the matter thereafter.” Even thereafter, the case was adjourned at the request of the learned counsel for the petitioners on 2-9-2011, 5-9-2011 and 14-9-2011. On 21-9-2011, the learned Judge passed the following order : “I have heard these matters for considerable length of time and I have accommodated the requests made by the learned counsel for the petitioner consistently. I ﬁnd that the petitioners seem to have some reservation for me to hear the matter, as the counsel is not readily available to proceed with the matter. Delete it from the list and place the papers before My Lord The Honourable Chief Justice for posting these cases before another Court, immediately.” In pursuance of the said order, the case has been allotted to this Court which was posted to 23-9- 2011, on which date the same was adjourned at the request of the learned counsel for the petitioners on recording ﬁrm assurance that the case will be argued on the next date of hearing. Evidently, on the same day, an aﬃdavit was ﬁled by the petitioners wherein it is inter alia stated that as the order dated 19-9-2009 passed by respondent No.2 is a nullity as the same was in violation of the order dated 25-8-2009 of this Court in W.P.No.10947/2009, the petitioners felt that they need not elaborately deal with the order on merits and that by way of abundant caution, they are raising the pleas on merits of the order as well. The petitioners have denied the ﬁnding of respondent No.2 in the impugned order that they have fabricated the notices by changing the extent from 50 yards to 1500 and 1800 meters and that respondent No.2 failed to ﬁle a counter-aﬃdavit in W.P.No.10947/2009 questioning the genuineness of the notices. The petitioners also denied the ﬁnding in the impugned order that the 10(1) account is tampered, as having no basis. It is further pleaded that respondent No.2 did not issue notice dated 14-9-2009 as stated in his order dated 19-9- 2009 and that they neither appeared before respondent No.2 on 18-9-2009 nor submitted any documents on 19-9-2009. The petitioners added that their former GPA might have received the notice on 14-9-2009 and appeared before respondent No.2 and produced the documents without any authority. The petitioners further pleaded that as they have cancelled the GPA by issuing legal notice, the said person could not represent them; that after ﬁling the Writ Petition, the petitioners came to know that the date of ﬁling the application by the private respondents seeking allotment of the land and the date of submission of report by respondent No.2 after inspection of the lands, is one and the same and that it was highly unnatural that on the same day on which the applications were made, the report was also submitted by respondent No.2 which prove beyond doubt that the action of respondent No.2 was mala ﬁde and pre-meditated. It is also averred that the date of ﬁling the application for regularization of land under G.O.Ms.No.747, dated 18-6-2008, is 31-8-2008, but the private respondents have applied for regularization much later to that date. The petitioners have ﬁled another aﬃdavit styling the same as reply aﬃdavit wherein it is inter alia stated that the Post Master, Waltair issued letter to the private respondents’ Advocate Sri Ratnakar Rao stating that the seal on the certiﬁcate of posting produced by the private respondents in the Writ Petition does not relate to their oﬃce. The petitioners have alleged that the private respondents have produced certiﬁcate of posting before the Post Master other than the one through which the petitioners’ counsel had sent the notice. It is further stated that the petitioners got letter dated 7-9-2011 addressed through their Counsel to the Post Master seeking clariﬁcation on the certiﬁcate of posting through which the petitioners have actually sent the notice and that so far no reply has been received; that their Advocate Sri A. Appa Rao, who has issued the legal notice canceling the GPA and posted the same in the Waltair Post Oﬃce, has also addressed letter dated 19-9-2011 to the Post Master, Waltair Post Oﬃce, requesting conﬁrmation of issuance of certiﬁcate of posting, enclosing the certiﬁcate of posting ﬁled in the Writ Petition and that their Advocate Sri A. Appa Rao, has also addressed letter dated 19-9-2011 to the Senior Superintendent of Post Oﬃce, Visakhapatnam to instruct the Post Master of Waltair Post Oﬃce, to issue conﬁrmation and that such conformation is awaited. Sri C. Ramachandra Raju, learned counsel for the petitioners advanced his submissions on the purported illegalities in the impugned G.O. at length. The learned counsel also advanced various submissions on merits touching the proceedings dated 19-9-2009 whereby respondent No.2 has rejected the petitioners’ claim for regularization of Ac.6-82 cents, except to the extent of 200 sq. yards. Sri O.Manohar Reddy, learned counsel for the private respondents, while meeting the submissions of the learned counsel for the petitioners, on merits, however, raised a preliminary objection on the maintainability of the Writ Petition at the instance of the petitioners by stating that the petitioners have indulged in deliberate suppression of material facts and have made every attempt to mislead this Court. The learned counsel further submitted that but for the petitioners indulging in such conduct, this Court would not have entertained the Writ Petition and granted the interim order. The learned counsel submitted that the jurisdiction of this Court under Article 226 of the Constitution of India being purely discretionary in nature, the petitioners have to be non-suited only on the ground