* THE HON’BLE MR. JUSTICE NOOTY RAMAMOHANA RAO AND THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY + WRIT PETITION Nos.7956, 7997 & 23682 of 2008 % Dated: 05-01-2010 #WP.No.7956/08: Dr. Rao V.B.J. Chelikani and another. WP.No.7997/08: M/s.Campaign for Housing and Tenural Rights, reptd., by its Secretary Sri S.Jeevan Kumar. WP.No.23682/08: Kesavrao Jadav. Petitioners Vs. $ The Government of Andhra Pradesh, reptd., by its Principal Secretary to Government, Revenue Department, A.P.Secretariat, Hyderabad and ten others. Respondents ! Counsel for the petitioners: WP No.7959/2008: Sri K.S.Murthy. WP No.7997/2008: Sri S.Sriram. WP No.23682/08: Sri S.Niranjan Reddy. ^ Counsel for the respondents: Advocate General for R.1 to R.3. Sri S.R.Ashok, Senior Counsel for Sri P.Bhaskar for R.4,7,10 & 11 Sri S.Satyanarayana Prasad, Senior Counsel for R.5 & R.9. Sri E.Manohar, Senior Counsel for R.6. Sri D.Prakash Reddy, Senior Counsel for R.8. <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1982 SC 149 21. (2005) 7 SCC 190 2. (1993) 4 SCC 441 22. (1970) 1 SCC 613 3. AIR 1991 SC 1902 23. (2000) 3 SCC 350 4. (2000) 2 SCC 465 24. AIR 1963 SC 1128 5. (2000) 7 SCC 552 25. (1977) 2 SCC 181 6. (1993) 2 SCC 703 26. (1996) 1 SCC 735 7. AIR 1974 SC 259 27. (1999) 4 SCC 149 8. (2001) 10 SCC 305 28. (1843-60) All England Reporter 378 9. AIR 1986 SC 391 29. (1947) 2 All England Reporter 255 (CA) 10. (2006) 4 SCC 683 30. (1990) 2 SCC 715 11. 1989 Supp (1) SCC 504 31. AIR 2007 SC 3166 12. AIR 1989 SC 1933 32. 1989 Supp (2) SCC 364 13. (2005) 2 SCC 673 33. (1990) 2 SCC 707 14. (2001) 4 SCC 448 34. AIR 1968 SC 647 15. (2002) 1 SCC 1 35. 1901 AC 495 16. (1992) 4 SCC 97 36. (2005) 6 SCC 733 17. (2003) 5 SCC 448 37. (1987) 1 SCC 213 18. (2008) 10 SCC 1 38. (2009) 6 SCC 611 19. (2007) 11 SCC 92 20. (2006) 4 SCC 1 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTH DAY OF JANUARY, TWO THOUSAND TEN PRESENT: THE HON’BLE MR. JUSTICE NOOTY RAMAMOHANA RAO AND THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.7956, 7997 & 23682 of 2008 Between: WP.No.7956/08: Dr. Rao V.B.J. Chelikani and another. WP.No.7997/08: M/s.Campaign for Housing and Tenural Rights, reptd., by its Secretary Sri S.Jeevan Kumar. WP.No.23682/08: Kesavrao Jadav. ..... Petitioners And The Government of Andhra Pradesh, reptd., by its Principal Secretary to Government, Revenue Department, A.P.Secretariat, Hyderabad and ten others. (Common in all the writ petitions) .....Respondents Counsel for the petitioners: WP No.7959/2008: Sri K.S.Murthy. WP No.7997/2008: Sri S.Sriram. WP No.23682/08: Sri S.Niranjan Reddy. Counsel for the respondents:Advocate General for R.1 to R.3. Sri S.R.Ashok, Senior Counsel for Sri P.Bhaskar for R.4,7,10 & 11 Sri S.Satyanarayana Prasad, Senior Counsel for R.5 & R.9. Sri E.Manohar, Senior Counsel for R.6. Sri D.Prakash Reddy, Senior Counsel for R.8. THE HON’BLE MR. JUSTICE NOOTY RAMAMOHANA RAO AND THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.7956, 7997 & 23682 of 2008 COMMON JUDGMENT:- (per C.V.NAGARJUNA REDDY,J.,) I. INTRODUCTION: Alienation of lands situated within the Greater Hyderabad Municipal Corporation limits to various Societies comprising as their members, persons, who are members of both the Houses of A.P. State Legislature, members of both the Houses of Parliament from A.P., Officers of All India Services i.e., IAS, IPS and IRS, who are the non-natives and working in the State of A.P. and those belonging to other States cadre with A.P. nativity working/worked on deputation in the State of A.P., Journalists and the High Court Judges of A.P., is the subject matter of this batch of writ petitions. When the State Government attempted to alienate the lands in favour of the persons belonging to the above categories, individually, the same was questioned by Dr. Rao V.B.J. Chelikani, petitioner No.1 in WP.No.7956 of 2008 along with two others by filing WP.No.13730 of 2006. A Division Bench comprising the Chief Justice G.S.Singhvi as he then was and one of us (CVNR,J) allowed the said writ petition and quashed G.O.Ms.No.522, Revenue (ASN.V) Department, dated 04.05.2006, whereby alienation of land was made in respect of the abovementioned categories, insofar as the said G.O. providing for allotment of land to the individuals, who are not members of the societies/groups and who may have received the benefit of concessional allotments from the Government earlier or as member of any society or group to which concessional allotment was made, was concerned. The Division Bench, while finding that there can be no rationale or justification for allotting land to the individuals irrespective of the fact that they may be possessing properties either in their own name or in the name of their spouse or children or they may have already been benefited by allotment of land at concessional rate either directly or through society, felt that the Government will do well to incorporate an additional restriction against the allotment of land to those who own a house or house site in their own name or in the name of their spouse or children, and make the same applicable to all future allotments, which may be made in accordance with the policy enshrined in G.O.Ms.Nos.242 and 243 dated 28.02.2005. The Division Bench left it open to the identified categories of persons to form new societies and get the same registered or make applications as groups for the purpose of allotment of land in terms of the policy contained in G.O.Ms.No.243 dated 28.02.2005. Purporting to follow the Division Bench judgment referred to above, the State Government issued as many as eight G.Os., viz., G.O.Ms.No.419, G.O.Ms.No.420, G.O.Ms.No.421, G.O.Ms.No.422, G.O.Ms.No.423, G.O.Ms.No.424 and G.O.Ms.No.425, dated 25.03.2008 and G.O.Ms.No.551, dated 27.03.2008 in favour of the various societies, which are shown as respondent Nos.4 to 11 respectively in these three writ petitions, whereunder different parcels of lands were alienated in their favour for being allotted to their members. The validity of these orders is assailed in these writ petitions by certain individuals and registered bodies in public interest. II. BACKGROUND: The State Government, realizing the urgent need for prudent management of the land resource located in urban and semi-urban areas for making provision for housing to “the targeted sections of society”, issued G.O.Ms.No.242, Revenue (Assignment-I) Department, dated 28-2-2005. By issuing the said G.O., the Government intended to have a comprehensive policy of meeting housing requirement of targeted sections of society by creation of land bank. The land was divided into five categories having regard to its ownership, usefulness for housing and location. This G.O., envisaged constitution of committees for short-listing the land for housing and other institutional needs keeping in mind the demand for the next twenty years. The Collector & District Magistrate of the District concerned is made the competent authority to transfer the Government land to land bank. He is entrusted with the power of acquiring private land for public purposes. The said G.O., also envisaged constitution of a Committee, known as “Empowered Committee”, which is vested with the powers to decide allotment of land, its apportionment and usage based on hierarchy of needs. It is also prescribed in the said G.O., that the Government will issue separate orders on the methodology to be adopted for selecting the Housing Societies/Institutions for allotment/alienation of land out of land bank, the conditions of allotment and on conferment of ownership rights. On the same day of issue of G.O.Ms.No.242, the Government issued two other G.Os., bearing Nos.243 and 244. The first of the said G.Os., purported to lay down guidelines, such as approach, methodology, the beneficiaries, the competent authority and the conditions for allotment of the land. The categories of beneficiaries indicated in G.O.Ms.No.243 are Judges of the Supreme Court and High Court; MLAs; MPs; All India Service Officers; Accredited Journalists from recognized and registered newspapers; the State Government Employees and Panchayat Raj S.No. Category of beneficiaries Total extent Individual extent Location 1 Members of Parliament (Lok Sabha & Rajya Sabha)/ M L A s (sitting)/Ex.MLAs & widows of MLAs. Ac.72-00 500 Sq.yards for sitting MPs & MLAs & 300 Sq. yards for Ex-MLAs & widows of MLAs. Poppalaguda village. 2 Judges of High Court of A.P., People of eminence & Left over serving pre-1989 AIS batches Ac.38-00 500 Sq.yards Nanakramguda village 3 All India Service Officers (Serving, Post-1989 AIS officers and serving AIS of other cadre with AP Nativity working/worked on deputation in AP) Ac.32-00 Ac.33-00 -do- -do- Poppalaguda & Vattinagulapalli villages . 4 Media persons. Ac.32-00 300 Sq.yards Vattinagulapalli villages . Teachers working in the State of Andhra Pradesh; Recognized National and International Sports persons and eminent persons in the field of Culture and Arts; Defence employees, Central Government employees and employees of PSUs; Widows of Kargil and other war heroes and extremist violence who are hailing from Andhra Pradesh; Weaker Sections; and Institutions – Educational/Charitable/Religious etc. The above mentioned categorization was made the basis for pricing of the land for alienation. The said G.O., also prescribed plot sizes for beneficiaries specified therein under 3 categories. Extents of 500 Sq. yards each are prescribed for Supreme Court and High Court Judges, MPs., MLAs., and All India Service Categories; 400 to 100 Sq. yards for Government employees; and 300 Sq. yards for Journalists. Under G.O.Ms.No.244 interse apportionment of plot sizes among the All India Service Officers and other employees is envisaged, ranging between 500 Sq. yards and 100 Sq. yards. Under G.O.Ms.No.522, Revenue (Assn.V) Department, dated 4-5- 2006, the State Government, accepting the proposals of the Collector, Ranga Reddy District/Chief Commissioner of Land Administration, allotted Government land admeasuring Ac.245.00 in Ranga Reddy District. The categories of allottees, respective extents of lands and their location are indicated in the following table: The appendix of the said G.O., contains guidelines and conditions subject to which allotments are to be made. G.O.Ms.No.522 was the subject matter of challenge before the Division Bench in Writ Petition No.13730 of 2006, referred to supra. The said Writ Petition was allowed, G.O.Ms.No.522 was quashed and liberty was given to the Government to make fresh allotments in the light of the directions and observations contained in the said judgment as referred to hereinbefore. Purporting to accept and implement the said judgment in so far as allotment of Government land in favour of mutually aided co-operative housing societies instead of individual members are concerned and also having decided that the allotment of house sites shall be made in accordance with the policy enunciated in G.O.Ms.Nos.242, 243 and 244, the Government issued series of G.Os., viz., G.O.Ms.No.419 dated 25-3-2008 and seven others referred to earlier, whereby allotment of lands was made in favour of the societies instead of individuals. The extents of lands and their location were the same as covered by G.O.Ms.No.522 dated 4-5-2006 with some of the conditions contained in the said G.O., having been varied. These G.Os., are called in question in the present batch of Writ Petitions. Before proceeding further, it would be pertinent to mention that G.O.Ms.No.421, dated 25-3-2008, which was issued in favour of the A.P. High Court Judges’ Mutually Aided Co-operative Society Limited, was withdrawn by the State Government, vide: G.O.Ms.No.482, dated 20-4- 2009, on the request of the said Society. This fact has been placed on record by Sri K.S.Murthy, learned counsel for the petitioners in Writ Petition No.2956 of 2008, through his letter, dated 1-5-2009, addressed to the registry. The learned counsel submitted a copy of the said G.O., while informing the registry that his clients are not-pressing the Writ Petition qua respondent No.6, for Court’s perusal. In view of this subsequent event, G.O.Ms.No.421, dated 25-3-2008, which ceased to exist, is eschewed from consideration in these cases. III. PLEADINGS: A) PETITIONERS’ CASE: The petitioners in these three Writ Petitions assailed the said G.Os., in public interest. Their case, as reflected in the averments contained in their respective Writ Petitions, is as under: (a) W.P.No.7956 OF 2008: In this Writ Petition, petitioner No.1 was one of the petitioners in Writ Petition No.13730 of 2006. Their main grievance is that the State Government failed to follow its own policy guidelines contained in G.O.Ms.Nos.242 and 243 and also brazenly violated the directions given and the unequivocal findings rendered by the Division Bench of this Court in Writ Petition No.13730 of 2006. The petitioners pointed out violation of the following conditions contained in G.O.Ms.Nos.243 and 244: “i. Allotment of land only in designated areas as per availability of land. ii) Land shall be allotted in the satellite townships to be developed by HUDA, APHB etc. iii) Land in the prime locations of Hyderabad and Ranga Reddy districts should be allotted only in favour of government organizations, public purpose, institutions only. iv) Land located within the proposed outer ring road should not be allotted for house sites. v) Beneficiary shall not sell the site for fifteen years. vi) In the Municipal Corporation of Hyderabad lands has to be alienated preferably for the construction of flats. vii) Allotment of land at prevailing market value for Central Government Employees. viii) The land value is also pegged at the prevailing price on 04-5-2006”. The petitioners pointed out that all the allotments made by the Government are in respect of the lands situated in the prime locations within the Ring Road and the limits of the Greater Hyderabad Municipal Corporation and surrounded by various important institutions carrying on various activities. It is useful to refer to paragraphs 20 and 21 of the affidavit, which are as under: “ 20. The village Poppalaguda, Nanakramguda, Gopannapally, Vattinagulapalli, Nizampet and Pet Basheerabad are prime locations and within the outer Ring Road. The villages in which the land is allotted to various categories of persons detailed above are highly sought after places for residence and offices. The Golf Course, the Indian Business School, the Delhi Public School, the Okridge Public School and the offices of Infosys, Microsoft, Wipro, Templeton, ISTA Hotel (7 Star Spa), Business Associates are established in these localities. The central business district is established at Nanakramguda. The villages of Poppalguda, Manikonda Jagir, Gopanpally and Vattinagulapalli are neighbouring villages of Nanakramguda. The large number of private apartment buildings, row houses are coming up on these areas. The road to the International Airport is passing through Nanakramguda village and the villages in which the lands are allotted are adjacent/nearby to the Ring Road. 21. The Nizampet and Pet Basherabad are prime locations for residential and commercial buildings and biggest housing complex that is KPHB is near Nizampet. The Mytas township being constructed by Satyam Group is adjacent to Nizampet village and within the limits of the Greater Hyderabad Municipal Corporation limits. In Pet Basheerbad the Satyam software development office is located and various other residential apartments”. The petitioners also pleaded that while allotting the lands, the Government failed to stipulate the condition of ineligibility of members of the societies who own a house or house site in their own name or in the name of their spouse or children, in terms of the Division Bench judgment in Writ Petition No.13730 of 2006. (b) Writ Petition No.7997 of 2008: The pleadings in this Writ Petition are more or less similar to those raised in Writ Petition No.7956 of 2008. In addition to them, it is pleaded that identification of categories of beneficiaries under G.O.Ms.No.243 is neither based on any empirical data nor any reasonable and objective criteria having nexus with the object sought to be achieved and the same is, therefore, in violation of Article 14 of the Constitution of India and against public policy. It is also pleaded that in recent years the Government has acquired private lands to a tune of 5000 acres situated in various villages of Ranga Reddy District for I.T. Projects, Bio-tech parks, Apparel Park, Discovery City, Hardware Park etc., on the ground that sufficient Government land is not available. The villages in which the lands are allotted under the impugned G.Os., are located in the I.T. Corridor earmarked for I.T. Companies. On one hand the Government is acquiring the lands belonging to poor agriculturists in the name of public interest by invoking the provisions of the Land Acquisition Act, 1894 and paying meagre compensation for those lands and, on the other, is allotting Government land to private societies. While the average price per acre in the area is not less than Rs.20.00 crores per acre, allotment of land on basic registration value is wholly arbitrary. Allotment of lands on such meagre prices to the persons irrespective of their private possessions is illegal. The persons belonging to media are neither Government servants, nor people of eminence, nor holding any positions in the Government. Allotment to the members of Press at concessional rate would affect the concept of “Free Press”. The Government holds the public land as a trustee for the benefit of public at large and allotment of lands under the impugned G.Os., without conducting auction or inviting tenders is against public interest. Allotment of land to the Judges of the High Court affects independence of the judiciary, which is one of the basic features of the Constitution. (c) WRIT PETITION No.23682 of 2008: The impugned G.Os., are violative of the provisions of Sections 24 and 25 of the A.P. (Telangana Area) Land Revenue Act, 1317 Fasli (for short “the 1317 Fasli”). Section 24 of the said Act provides for allotment of land by the District Collector in the manner prescribed and Section 25 does not contemplate any permanent alienation but it only provides for placing the land at the disposal of the concerned agencies for any public purposes. A fortiori, the A.P. (Telangana Area) Alienation of State Lands and Land Revenue Rules, 1975 (for short “Alienation of State Lands Rules”) framed under Section 25 of the 1317 Fasli have no application and Assignment of House Sites in Villages & Towns in Telangana Area Rules, 1975 (for short “the Assignment of House Sites Rules”) directly apply as the said Rules deal with assignment of house sites for private purposes, whether individuals, firms or societies and whether the grant is free or is made on payment of full or a concessional value for the land. Therefore, allotment of land under the impugned G.Os., by placing reliance on Rules 2(i) and 10 of the Alienation of State Lands Rules, is erroneous. The impugned G.Os., are contrary to the declared policy of the State Government in existence from 1961 onwards, under which land in and around Hyderabad has been prohibited from alienation for house site purposes. The impugned allotment is also contrary to Board Standing Orders. G.O.Ms.Nos.243 and 244 are also violative of the policy specified in G.O.Ms.No.242 on the following aspects. The allotments are not need based, but were made as of right. No comprehensive exercise was contemplated in respect of acquisition cost of land, identification of the persons who are in need of shelter, determination of hierarchy of needs, demand for land, apportionment of usage based on hierarchy of needs, and recommended price to be fixed for the land proposed for allotment. Allotments were made in violation of the policy norm governing the location viz., plots were allotted in areas where only flats alone shall be constructed and allotted. Norms regarding prohibition of allotment of sites near Satellite Township and within Outer Ring Road are violated. Classification was made only for pricing purpose. Discrimination in pricing among the identified categories is indulged in. Assessment of availability of land is not made. The Collector & District Magistrate has not given approval for allotment. The Empowered Committee, envisaged in G.O.Ms.No,243, has not stipulated the rates. Beneficiaries were identified first irrespective of need or necessity as envisaged in G.O.Ms.No.242. Categories (2) to (4) in G.O.Ms.No.243 are discriminated against Category (1) in fixing the ratio of extents of land where lesser land is available. The State cannot indulge in discrimination among the citizens while undertaking welfare activity. Allotment among the four institutions of Democracy as a one time welfare measure is wholly unconscionable, reeks of favouritism and violative of Article 14 of the Constitution of India. The allotments are contrary to the Directive Principles of the State policy and the concept of Welfare State. The allotments being beyond the conditions of service and employment, the Government is obligated to treat all the citizens equally. Necessity ought to be the only criteria when free or concessional allotments are made. The persons belonging to All India Service constitute creamy layer and, therefore, are not entitled to affirmative action. The allotments are violative of the ‘trust’ doctrine. B) RESPONDENTS’ CASE: a) The stand of official respondents 1 to 3: The gist of the stand taken by respondents 1 to 3, as reflected in various counter-affidavits and additional counter-affidavits filed by them, is referred to hereunder to the extent it is relevant. The Division Bench judgment in Writ Petition No.13730 of 2006 operates as resjudicata/constructive resjudicata. G.O.Ms.No.522, by which alienation of land was made, was interfered with only on two grounds, viz., allotments in favour of individuals, who are not members of societies/groups, was bad; and non-inclusion of the persons, who may have received the benefit of concessional allotments from the Government earlier or as member of any society or group to which concessional allotment was made, was not legal. Neither the identity of the beneficiaries nor the location and allotment of land has been interfered with under the said judgment. Therefore, the petitioners cannot be permitted to once again raise the same issues, which were raised but were not successful in the earlier round by operation of doctrine of resjudicata/constructive resjudicata and application of the principle underlying Order II Rule 2 C.P.C. The Division Bench has not declared G.O.Ms.No.522 as illegal on the ground that it did not contain any condition of ineligibility of the persons, who own a house or house site in their names or in the name of their spouses or children and the said judgment merely contains certain observations reflecting the views of the Bench, which do not constitute any direction to the Government to stipulate such a condition. The Government, after examination of the issue, decided not to incorporate any condition to render the persons owning houses or house sites, as that would amount to discrimination. The one time allotment of the house sites is in recognition of the services rendered by various categories of persons, as an incentive. Therefore, the allotment of lands to various categories under the impugned G.Os., is not on the ground that they belong to weaker sections. Earlier to issue of G.O.Ms.No.12 dated 11-1-2002 amending the Alienation of State Lands Rules, State lands could be alienated only for a public purpose and, that too, by following the procedure prescribed in the said Rules. After issue of G.O.Ms.No.12, the lands of the State can be alienated not only for public purpose, but also “for any specified purpose”. Under Rule 10 of the said Rules, the Government is empowered to alienate the State lands in Telangana area by following a reasonable procedure. The Division Bench recognized this power of the Government in its judgment in Writ Petition No.13730 of 2006 and traced the allotments to the said Rule, though the said Rule was not specifically referred in the order of allotment. The core issue that was framed by the Division Bench in the earlier Writ Petition was whether the decision of the Government to relax the conditions embodied in G.O.Ms.Nos.242, 243 and 244 to facilitate allotment of lands to individuals belonging to the identified categories was constitutionally valid and the Bench specifically held that no serious view can be taken on allotment of lands to groups or societies comprising identified persons including the MPs., and MLAs; Judges of the Supreme Court and High Court; the Members of All India Service; employees of other categories; persons who have excelled in different fields of public life and sports; and journalists. The Government seriously considered the observations of the Division Bench and after obtaining