*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY +WRIT PETITION No.9672 of 2003 % Dated: 13-08-2008 # Kulwant Singh Chatwal and five others.. Petitioners VERSUS $ The Joint Collector, Ranga Reddy District, at Hyderabad and three others. Respondents ! Counsel for Petitioners: Mr. K.G. Kannabhiran Senior Counsel assisted by Mr. B. Nalin Kumar ^Counsel for the Respondents: AGP for Revenue (Assignments). <GIST: > HEAD NOTE: ? Cases referred 1. 2007 (2) ADLT 322 = 2007 (4) ALD 297 2. AIR 1958 SC 868 3. (1989) 4 SCC 582 4. (2000) 6 SCC 359 5. AIR 1993 SC 2465 6. (2002) 1 SCC 227 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WEDNESDAY, THE THIRTEENTH DAY AUGUST, TWO THOUSAND EIGHT ONLY WRIT PETITION No.9672 of 2003 Between: Kulwant Singh Chatwal and five others. … Petitioners AND The Joint Collector, Ranga Reddy District at Hyderabad and three others. … Respondents Counsel for the petitioners: Sri K.G.Kannabhiran Senior Counsel assisted by Sri B. Nalin Kumar Counsel for the respondents: AGP for Revenue (Assignments) This Court made the following: ORDER:- The petitioners, who served the Indian Army, retired from the service between 1946 and 1976. All of them are domiciled in Andhra Pradesh and have been drawing pension for the service they have rendered in the Indian Army. In order to rehabilitate the Ex.Servicemen, the Government of Andhra Pradesh issued G.O.Ms.No.25, Revenue Department, dated 23.10.1952, by which it assigned an extent of Ac.5,977-03 guntas in Jawaharnagar village to the Department of Labour. The Government, later on, framed operating guidelines in order to effectuate the purpose of rehabilitation of Ex.Servicemen, vide G.O.Ms.No.743, Revenue, dated 30-4-1963. The said G.O., laid down the eligibility criteria, the extents for and the conditions subject to which the assignment of agricultural land shall be made in favour of the Ex.Servicemen. Subsequently, the Government issued G.O.Ms.No.1573, Home (Labour-IV) Department, dated 18-7-1966, in supersession of all the previous orders and laid down conditions for the selection of ‘Colonists’ for implementation of its scheme and for establishment of Co-operative Land Colonies for Ex.Servicemen. Even before issuance of G.O.Ms.Nos.743 and 1573, a Co-operative Society, by name, Jawaharnagar Land Colonization Co-operative Society (for short “the Society”) was registered on 9-1-1958 and the above-mentioned extent of land was transferred in favour of the Society. The said Society appeared to have allotted land to 149 Ex. Servicemen. In the wake of several allegations of commissions and omissions against the Managing Committee of the Society, the District Collector by proceedings dated 27-10-1968 superseded the Managing Committee and appointed a Co-operative Sub-Registrar as Special Officer to manage the affairs of the Society. On the proposals made by the District Collector, vide his letter dated 1-4-1970, the Government issued G.O.Ms.No.17, Revenue (Q) Department, dated 5-1-1976 resuming the extent of Ac.5,977-03 cents from the Society and directing to dispose of the said land by way of individual assignment to the Ex.Servicemen for whom the scheme was originally intended on priority basis and that the balance land available to be assigned to the other eligible landless poor persons of the area. In their affidavit, the petitioners averred that in the list prepared by the Society consisting of eligible Ex.Servicemen, their names were not included; that as the Society itself was disbanded on the complaints made against its functioning, the said list had no sanctity; and that the petitioners were put in possession of Ac.5.00 cents each in the year 1974. The petitioners further claimed that since the time of taking possession, the petitioners have been cultivating the land as under: Sl.No. Petitioner Number Survey No Crop 1 Petitioner No.1 303 Eucalyptus, coconut and other trees 2 Petitioner No.2 663 Castor and vegetables 3 Petitioner No.3 651 Mango garden and Farm House 4. Petitioner No.4 348 Vegetables 5 Petitioner No.5 347 Mango garden 6 Petitioner No.6 349 Crop The petitioners pleaded that they were given possession in anticipation of allotment/assignment orders and that their possession was never interfered with by the respondents. A perusal of the record reveals that the petitioners, along with six others, filed Writ Petition No.12607 of 1994 in this Court for appropriate directions to dispose of the representation filed by them before the District Collector for grant of assignment. The said Writ Petition was disposed of by this Court by order dated 13-7-1994 with the direction to the District Collector to dispose of the petitioners’ representations. The District Collector, vide his proceedings dated 20-9-1997 rejected the said request of the petitioners. The petitioners then filed Writ Petition No.6799 of 1999 in this Court for appropriate directions to the respondents to assign the lands in their occupation in terms of G.O.Ms.No.17, Revenue (Q) Department, dated 5-1-1976. The said Writ Petition was allowed by a learned single Judge of this Court by judgment dated 13-8-1979 and the District Collector, Ranga Reddy District, was directed to grant assignments to the petitioners in respect of Ac.5.00 guntas each in their occupation. The said judgment was questioned in Writ Appeal No.2032 of 1999 by the respondents, which was disposed of by a Division Bench of this Court by order dated 29-12-1999, whereby the Division Bench substituted the direction issued by the learned Single Judge with the direction to the respondents to consider the petitioners’ claim for assignment, in accordance with law, within a period of six months and accordingly modified the order of the learned Single Judge. In pursuance of the above mentioned Division Bench order, respondent No.2 re-considered the request of the petitioners for assignment and rejected the same on the following five grounds: “ (i) All the six persons will not come under the definition of demobilized Jawans and that they are not fulfilled the conditions for assignment of the land in the newly created village; (ii) The five petitioners at Sl.No.1 to 5 were above the rank of Jawans; (iii) The names of all the six persons are not found in the list of 149 original members of the Jawaharnagar Co-operative Land Colonization Society; (iv) Even if the request of the petitioners has to be considered for assignment of Government and under the rules of assignment of Government land to Ex- Servicemen, the petitioners have not filed their petitions within 12 months from the date of discharge from service and routed through District Soldiers, Sailors & Airmen’s Board for assignment of Government land as required under the rules relating to assignment of Government land to Ex-Servicemen; and (v) there is a ban on assignment of Government land of the village to other than the Society members. The petitioners at Sl.Nos.1 to 5 above will not come under the category of demobilized. Jawans and their names are also not included in the list of 149 members of the Jawaharnagar Co-operative Land Colonization Society and also they have not produced any documentary evidence to show that they have applied for assignment of Government land within a stipulated period of 12 months from the date of discharge through proper channel as prescribed and that there is a ban for assignment of Government members of the above society. Therefore, the petitioners are not eligible for assignment of the Government land in their possession. The petitioner at Sl.No.6 although comes under the category of Jawan but will not come under the definition of demobilize Jawans also that his name is not found in the list of 149 members of Jawaharnagar Co-operative Land documentary evidence to show that he has applied for assignment of Government Land within a period of 12 months from the date of discharge through proper channel as prescribed and that there is a ban for assignment of Government land in Jawaharlal village for the persons other than 149 members of the above Society. Therefore, the petitioner is not eligible for assignment of Government lands in his possession”. The appeal filed by the petitioners against the said order of respondent No.2 was dismissed by respondent No.1. In addition to the grounds on which respondent No.2 rejected the petitioners’ claim for assignment, respondent No.1 in his order added another ground, viz.,that the petitioners have not produced any documentary evidence to the effect that they were actively employed in agriculture before the War. These two orders are assailed in this Writ Petition. Sri K.G.Kannabhiran, learned Senior Counsel, appearing for the petitioners contended that the findings contained in judgment dated 13-8-1999 in Writ Petition No.6799 of 1999 having not been set aside by the Division Bench in Writ Appeal No.2032 of 1999, the two orders passed by respondents 2 and 1 on the basis of the reasons contrary to the findings of the learned Single Judge contained in the said judgment on the eligibility of the petitioners for assignment cannot be sustained. The Division Bench, contends the learned Senior Counsel, merely substituted the direction without disturbing the findings contained in the judgment of the learned Single Judge, and that, therefore, the said findings being conclusive on the petitioners’ entitlement for assignment, respondents 1 and 2 are bound by the same. The learned Senior Counsel further contended that all the six reasons given by respondent No.2 and the additional reason given by respondent No.1 are based on misreading of G.O.Ms.No.1563, which was issued in supersession of all earlier G.Os., including G.O.Ms.No.743, and that, at any rate, the petitioners satisfy all the conditions contained in the said two G.Os., for grant of assignment. The learned Assistant Government Pleader for Revenue (Assignments), however, made strenuous efforts to sustain the orders passed by respondents 1 and 2. He relied upon the Judgment of the Division Bench of this Court in K.Anjana Devi and others Vs. Government of A.P.1) in support of his contention that by applying the doctrine of merger, the judgment in Writ Petition No.6799 of 1999 having merged in the order dated 29-12-1999 passed in Writ Appeal No.2032 of 1999, none of the findings of the learned single Judge survive and, therefore, respondents 1 and 2 were not bound by any of those findings. The learned Assistant Government Pleader further submitted that the reasons contained in the orders of respondents 2 and 1 do not suffer from any error either of fact or law, warranting interference of this Court. He took me through the background in which the land was allotted for granting assignment to the Ex.Servicemen under various G.Os., and contended that the claim of the petitioners that they were put in possession in the year 1974 by the Society cannot be sustained in view of the admitted fact that the Managing Committee of the Society was superseded as far back as 27-10-1968 by the District Collector and a Co-operative Sub- Registrar was appointed as Special Officer to manage the affairs of the Society and that, therefore, the petitioners’ alleged possession is wholly unauthorized and illegal. The learned Assistant Government Pleader also submitted that in view of the complete urbanization of Jawaharnagar, which falls within the Greater Hyderabad Municipal Corporation area, there is no possibility of agriculture being carried on in future and in the changed circumstances, the petitioners are not entitled to grant of assignment of the said land for agricultural purpose. As regards the contention of the learned Senior Counsel pertaining to the findings of the learned single Judge in Writ Petition No.6799 of 1999, I find myself in disagreement with the same. In CTI Vs. M/s.Amritlal Bhogilal & Co2) the Supreme Court held that if an appeal is provided against the order passed by the Tribunal, the decision of the appellate authority is the operative decision in law, whether it modifies or affirms the decision of the lower authority and the decision of the original authority merges in the appeal decision. The Supreme Court further held that it is the appellate decision alone, which subsists, is operative and capable of enforcement. In S.S.Rathore Vs. State of Madhya Pradesh3) the Constitution Bench of the Supreme Court endorsed the said view. In Kunhayammed Vs. State of Kerala4) the Supreme Court reviewed the entire case law on the doctrine of merger and held as under: “The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, Tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.” (Emphasis supplied). The Division Bench, in K.Anjana Devi (1 supra), speaking through me, referred to and relied upon the above mentioned Supreme Court judgments and rejected the contentions raised by the petitioners therein that certain findings of the High Court were not interfered by the Supreme Court in Smt.Athia Mohammadi Begum Vs. State of U.P5) and in State of A.P. Vs. Audikesava Reddy6) and, therefore, the State of Andhra Pradesh was bound by those findings. In that context, the following observations made by the Division Bench are apposite to be extracted below: “36. As already noted hereinbefore, the High Court granted several reliefs including the one which declared all the orders passed under the 1976 Act as null and void and unenforceable. With the allowing of the civil appeals, the reliefs which were granted to the petitioners were denied to them and the final notification issued under Section 10(6), not to speak of all the earlier orders passed at different stages preceding the said final declaration, received approval of the Supreme Court. It is this final decision of the Supreme Court, which alone is operative governing the subject matter viz., determination of the excess land as done under various orders of the Hyderabad Urban Development Authority. Therefore, the doctrine of merger applies with all its vigor to these cases, and the surplus area case of the landowners cannot be reopened. 38. In para 17, which is the concluding paragraph wherein certain civil appeals including the two civil appeals concerned with this batch of cases were allowed, the Supreme Court has not made the result of allowing the civil appeals subject to the observations made in para 15. The generic observations made in para 15, in our considered view, cannot have the effect of setting aside the various orders passed under the 1976 Act including the notification issued under Section 10(6). Reading paragraph 15 of the judgment in the manner pleaded by the petitioners would lead to a serious contradiction between the said para and para 17 of the judgment, which contains the final decision viz., allowing of the relevant civil appeals”. In the case on hand, no doubt, the learned Single Judge gave findings to the effect that the petitioners are eligible for grant of assignments under various G.Os., referred to above, including G.O.Ms.No.17, dated 5-1-1976. However, in the Writ Appeal, the Division Bench modified the order of the learned Single Judge by passing the following order:- “After hearing both sides, we direct that the following directions be substituted in place of the direction issued by the learned single Judge in his order under appeal. That the appellants will be at liberty to consider the decision of assignment in accordance with law within a period of six months from today. The order under appeal is modified accordingly. The Writ Appeal is disposed off above. There shall be no order as to cost”. As per the dicta laid down by the Supreme Court and followed by this Court in K.Anjana Devi (1 supra), the only decision that was operative was the order passed in Writ Appeal No.2032 of 1999, because the order of the learned Single Judge got merged in the said order. The Division Bench, while modifying the order and substituting the directions given by the learned Single Judge did not specifically affirm the findings of the learned Single Judge. Far from affirming and reiterating the said findings, the Bench gave liberty to the respondents to consider the petitioners’ claims for assignment “in accordance with law”. If the Division Bench intended the findings of the learned Single Judge to be operative and acted upon, it would have directed that the claims of the petitioners shall be considered by the respondents in accordance with and in the light of those findings. Instead, as already noted, the Division Bench directed the respondents to consider “ in accordance with law”, which necessarily means that the claims of the petitioners are required to be considered in the light of the statutory provisions, if any, and the executive instructions contained in various G.Os., which constitute law. In this view of the matter, this contention of the learned Senior Counsel stands rejected. With regard to the next contention advanced on behalf of the petitioners that the findings of respondents 2 and 1 cannot be sustained and that the petitioners are eligible for assignment upto Ac.5.00 guntas of dry land, it is necessary to refer to the relevant G.Os., in order to dispose of this contention. As noted supra, an extent of Ac.5977.03 guntas situated in Jawaharnagar village was handed over to the Labour Department for rehabilitation of Ex.Servicemen. Later, the Society was constituted. According to the eligibility criteria contained in G.O.Ms.No.743 dated 30-4-1963, all the Jawans, including non-commissioned ranks of the three Armed Services and also non-combatants, but excluding officers domiciled in Andhra Pradesh and serving in the Defense Forces of India, after their demobilization, are eligible for assignment of land in their own villages or elsewhere. Each Jawan is eligible for assignment of Ac.2.50 wet or Ac.5.00 dry land, including the land already owned by him. The land assigned shall not be sold or alienated for a period of ten years, subject, however, to the right of hypothecation to the Government, Co-operative Societies etc. Applications for assignment of land should be made to an officer not below the rank of Deputy Tahsildar, who is competent to assign the land and should be supported by a Certificate from the officer commanding of the Regiment in which the Jawan is serving and should be routed through the Secretary, State Soldiers’, Sailors’ and Airmen’s Board and the applications are to be made within 12 months from the date of discharge of the Jawan or in the case of death in active Service, from the date of intimation of the Jawan’s death to the family of the deceased. G.O.Ms.No.1573, dated 18-7-1966, was issued in supersession of all previous orders. Condition No.1 envisages order of preference of Ex.Servicemen, who served in Armed Forces as under: “I) Those who have served in India other than ‘Operational Areas and elsewhere’ Note: The following shall also be eligible for selection as colonists:- i. Personnel who have rendered whole time services in the Armed forces; ii. Recipients of Jangi Inams; and iii. Personnel in the civil pioneer force Units who have served for an aggregate period of 180 days on the Eastern side of the Brahmaputra prior to the date of surrender of Japan”. Other conditions contained in the said G.O., include that the Ex.Servicemen should be landless or if he has any lands it should not be an economic holding (Condition No.III) and he should have actively employed in agriculture before the war, which includes employment as an agricultural labourer (Condition No.IV). A perusal of the above said two G.Os., shows that, while G.O.Ms.No.743 used the expression ‘Jawan’ including non- commissioned ranks and also non-combatants, but excluding officers domiciled in Andhra Pradesh, as eligible for assignment; G.O.Ms.No.1573 made all Ex.Servicemen, who satisfy the Conditions (I) to (VII) contained therein eligible for assignment. The latter G.O., specifically mentioned that the same was issued in supersession of all the previous orders on the subject. It is not in dispute that the subject relates to assignment to the personnel who served in the Defense Forces/Armed Forces of India. In the references of the said G.O., two letters – one from the Registrar of Co-operative Societies dated 25-6-1965, and the other from the Secretary, A.P. State- Soldiers’, Sailors’ and Airmen’s Board, dated 20-10-1965 – apart from G.O.Ms.No.488, Public (Resettlement) Department, dated 13-2-1947 have been mentioned. There is, however, no reference to any other G.O., including G.O.Ms.No.743 dated 30-4-1963. But, it superseded all previous orders on the subject. A close perusal of the conditions contained in G.O.Ms.Nos.743 and 1573 shows that the conditions of eligibility are at variance between the two G.Os. As noted hereinabove, while Jawans were made eligible in G.O.Ms.No.743, all Ex.Servicemen are eligible under G.O.Ms.No.1573. Under G.O.Ms.No.743 the maximum holding shall be Ac.2.50 wet and Ac.5.00 dry, while under G.O.Ms.No.1573 a person shall be landless or if he has any land, it should not be an economic holding; and the extents of Ac.2.50 wet and Ac.5.00 dry mentioned in G.O.Ms.No.743 were substituted by Ac.5.00 wet and Ac.10.00 dry to determine the eligibility in G.O.Ms.No.1573. It is, therefore, clear that in view of these material variations in respect of substantive areas, both these two G.Os., cannot stand side by side. It is significant to note that in G.O.Ms.No.17, Revenue (Q) Department, dated 5-1-1976, which was issued consequent on supersession of the Managing Committee of the Society and resumption of land from the Society, it is directed that the resumed land of Ac.5977.03 guntas of Jawaharnagar village shall be disposed of by way of individual assignment to Ex.Servicemen for whom the scheme was originally intended. The Government, thus, used the expression ‘Ex.Servicemen’ instead of ‘Jawan’. A close analysis of these two G.Os., reveals that - the State Government refined the conditions contained in G.O.Ms.No.743 by issuing G.O.Ms.No.1573 and the same having been issued in supersession of all previous orders – it shall necessarily be construed that G.O.Ms.No.743 is deemed to have been superseded by the latter G.O. Hence, keeping the conditions contained in G.O.Ms.No.1573 in view, the reasons given by respondent No.2 and as confirmed by respondent No.1 for rejecting the claims of the petitioners, are required to be examined. A perusal of the order passed by respondent No.2 reveals that he failed to take into consideration G.O.Ms.No.1573, which, as held above, was the G.O., in force for the purpose of determining the eligibility of the petitioners for assignment. Respondent No.2 thus committed a serious error in eschewing the said G.O., from consideration. Under the first ground, respondent No.2 held that on verification of the application and service particulars, none of the six petitioners come under the definition of “demobilized Jawans”. The condition of demobilization is relevant if G.O.Ms.No.743 governed the cases of the petitioners. Assuming that the said G.O., had application, the word ‘demobilization’ is not defined in the said G.O. Respondent No.2 did not explain its meaning and the ground for his coming to the conclusion that they did not satisfy this condition. Similarly, respondent No.2 held under the second ground that the petitioners were above the rank of Jawans. Here again, the relevancy of the applicant being Jawan will arise only if G.O.Ms.No.743 applies. The fact that the petitioners are Ex.Servicemen is not in dispute. Irrespective of whether they satisfy the criteria contained in G.O.Ms.No.743, the petitioners are still eligible for assignment by virtue of being Ex.Servicemen, who squarely fall within the ambit of G.O.Ms.No.1573, dated 18-7-1966. This ground of rejection, therefore, pales into insignificance. A regards the third ground of rejection, the same is equally irrelevant because inclusion of the names of