IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 9314 of 2007 Between: Damera Venkata Narsimha Appa Rao S/o.Surya rao Patwarigudem, Dammapeta Mandal, Khammam District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep. by Secretary, Social Welfare (LTR-2) Department, secretariat, Hyderabad. 2 The AGent to Government (Dist. collector) Khammam, Khammam District. 3 The Special Deputy Collector, Tribal Welfare, Palwancha, Khammam District. 4 The Mandal REvenue Officer, Dammapeta Mandal, Khammam District. 5 Podem Krishna S/o.Papa Rao Tallamada village, Dammapeta Mandal, Khammam District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of Certiorari calling for the records relating to the order in the GO Ms.No.13 Social Welfare (LTR-2) Department dt. 15.3.2007 passed by the first respondent confirming the order passed by the second respondent vide order dt. 27.7.1999 in CMA No.75/98 and quash the same and pass such other order or orders. Counsel for the Petitioner: MR.KAKARAVENKATA RAO Counsel for the Respondent Nos.1 to 4: GP FOR SOCIAL WELFARE The Court made the following : O R D E R : Petitioner Damera Venkata Narasimha Appa Rao purchased Ac.18.32 guntas in Survey No.416 and Ac.13.04 guntas in Survey No.417 of Patwarigudem village, Dammapeta Mandal, from Turram Rajulu and Turram Surappa sons of Turram Katappa under a sada sale deed dated 10.12.1961. Proceedings were initiated against the petitioner in the year 1974 for his ejectment from the lands in his occupation on the ground that his occupation is in contraventions of the provisions of the A.P. Scheduled Areas Land Transfer Regulation, 1959, as amended by Regulation 1 of 1970. A notice in Form ‘E’ came to be issued to him. The Special Deputy Collector (T.W.), Paloncha, Khammam District-3rd respondent took the proceedings on file as Case No.1050 of 1974. Turram Surappa, who is the son of Turram Rajulu, appeared before the Special Deputy Collector (TW), Paloncha-3rd respondent and admitted of sale of the land in favour of the petitioner. The Special Deputy Collector (TW), Paloncha-3rd respondent came to the conclusion that the possession of the petitioner in respect of the above referred lands was not in contravention of the provisions of the A.P. Scheduled Areas Land Transfer Regulation, 1959, as amended by Regulation 1 of 1970 and accordingly, dismissed the case No.1050 of 1974 by order dated 29.11.1975. For better appreciation, I may refer the text of the order passed by the Special Deputy Collector (TW), Palvancha-3rd respondent, which reads as hereunder: “This case is taken up for suo moto enquiry with reference to the particulars collected from the village records. Notice in Form ‘E’ was issued to the respondent and it was served on him on 2-5-74. Notice intimating the date of hearing was issued to the parties. Both parties attended on 28.8.75. Respondent wanted time to produce documents. Respondent attended on 29.9.75 and produced sale deed written on plain paper, executed on 10.12.1961 for a consideration of Rs.1500/-. He produced L.R. receipts for 1962-63, printed receipts for 1963-64 to 1967-68 and pattader pass book containing receipts for 1968-69 to 1971-72 and L.R. Pass book for the subsequent years. Tribal representative and legal heir, Turram Surappa attended and deposed that the land was sold long back after the Rajakar Movement and there is now a mango tope on the lands raised by the respondent. Patwari of the village corroborated the facts deposed by the tribal legal heir. The transfer of land took place prior to 1963. The petitioner is dismissed.” In the year 1979 Turram Rajulu son of Katappa filed a petition against the petitioner before the Special Deputy Collector (TW), Paloncha-3rd respondent in respect of the self same lands. The Special Deputy Collector (TW), Paloncha-3rd respondent took the case on file as Case No.172/STP/79. The case ended in dismissal on 24.03.1982. One Turram Muthyalu son of Katappa again filed a petition against the petitioner and one Sri Jupalli Krishna Rao in the year 1994 in respect of the selfsame lands. The Special Deputy Collector (TW), Paloncha-3rd respondent took the case on file as Case No.985/94/DPT and issued Form ‘E’ notice under Rules 7(1) and 7(2) of the A.P. Scheduled Areas Land Transfer Regulation Rules, 1969 made under Regulation 1 of 1959. The petitioner appeared before the Special Deputy Collector (TW), Paloncha-3rd respondent and submitted his response. The Special Deputy Collector (TW), Paloncha-3rd respondent dismissed the case by order dated 16.01.1995. The petitioner initiated proceedings before the Mandal Revenue Officer, Dhammapeta Mandal-4th respondent under the provisions of the A.P. Record of rights in Land and Pattedar Pass Books Act, 1971, and got the sada sale deed regularized and paid Rs.170/- towards registration fee and stamp duty. Pattedar passbook and title deeds came to be issued in his favour. Podem Krishna son of Paparao of Tallamada village-5th respondent, claiming to be the son-in-law of Turram Surappa, submitted a petition before the Agent to the Government (District Collector, Khammam), Khammam-2nd respondent assailing the order passed in LTR Case No.1072 of 1974, dated 12.12.1975 and LTR Case No.1050 of 1974, dated 29.11.1975. The Agent to the Government-2nd respondent treated the petition as an appeal and condoned the delay of 23 years in filing the appeal assailing the orders passed in LTR Case Nos.1050 and 1072 of 1974. After condonation of delay, the Agent to the Government-2nd respondent took the appeal on file as CMA No.75 of 1998. The petitioner entered appearance before the 2nd respondent and sought for review of the orders passed on the delay condonation petition. He also moved another application seeking injunction against the authorities not to interfere with his peaceful possession and enjoyment of the lands pending the appeal. The Agent to the Government-2nd respondent proceeded to allow the appeal, by order dated 27.07.1999 and directed the Mandal Revenue Officer to take possession of the land and handover the same to the legal heirs of the pattedar. The petitioner filed W.P.No.16426 of 1999 assailing the order dated 27.07.1999 passed in CMA No.75 of 1998. The said writ petition came to be disposed of on 10.11.2003 leaving it open to the petitioner to avail the remedy of revision before the Government. The petitioner filed revision before the Government of Andhra Pradesh represented by its Secretary, Social Welfare (LTR-2) Department, Hyderabad-1st respondent. The said revision came to be dismissed on 15.03.2007 vide G.O.Ms.No.13 Social Welfare (LTR-2) Department, dated 15.03.2007. Hence, this Writ Petition by the petitioner seeking the following relief: “For the reasons stated in the accompanying affidavit, it is hereby prayed that this Hon’ble Court may be pleased to issue a writ of Certiorari calling for the records relating to the order in the GO Ms.No.13 Social Welfare (LTR-2) Department, dated 15.03.2007 passed by the first respondent confirming the order passed by the second respondent vide order dt.27.07.1999 in CMA No.75/98 and quash the same and pass such other order or orders as are deemed fit and proper in the circumstances of the case.” 2. Rule Nisi came to be issued on 30.04.2007. Despite service of notice, the 5th respondent did not choose to enter appearance either in person or through a counsel. 3. Respondents 1 to 4 filed counter-affidavit. It is stated in the counter- affidavit that the Special Deputy Collector (TW), Paloncha-3rd respondent, in Case No.1050 of 1974 relied upon only on the statements of the legal representatives of the deceased owner of the land and passed orders without taking cognizance of the entries in the basic village records i.e. Pahanis. The Agent to the Government-2nd respondent condoned the delay keeping in view the fact that the pattedar is a tribal, illiterate and innocent. It is further stated in the counter-affidavit that appeal being CMA No.75 of 1998 came to be taken up on the representation of Podem Krishna S/o.Paparao-5th respondent as he is one of the family members of Turram Surappa. For better understanding of the stand of the respondents 1 to 4, I deem it appropriate to refer para.7 of the counter-affidavit and it reads as hereunder: “7. In reply to Ground (b) & (c), it is respectfully submitted that it came to know through a representation submitted by one Podem Krishna S/o.Paparao, 5th respondent herein, that, the pattadar of the land in suit land in Sy.No.416, to an extent of Ac.18.32 Gts. and Sy.No.417 to an extent of Ac.13.04 Gts. belongs to ST, who is in old age, unable even to move from the bed and also an ignorant and innocent, and that the Agent to Government came to a conclusion that the tribal pattadar was exploited by the Non-Tribals, treated the representation as petition, and taken on file and numbered as CMA No.75/98. The Agent to Government, the 2nd respondent herein, considering all the above aspects such as, the pattadar is a tribal, illiterate, ignorant and innocent, acted in a fair manner and condoned the delay. Accordingly, passed orders dated 07.12.1998, in IA No.100/98.” 4. Heard learned counsel appearing for the petitioner and learned Government Pleader for Social Welfare appearing for the respondents 1 to 4. 5. Learned counsel appearing for the petitioner submits that entertaining the appeal at the instance of the 5th respondent, who claims to be the son-in-law of Turram Rajulu is illegal and improper. He further submits that proceedings initiated against the petitioner for ejectment in LTR Case No.1050 of 1974 ended in dismissal on full dressed trial and the aggrieved party therein did not choose to assail the same and therefore, it reached the finality. A further submission has been made that the attempts made by some of the family members of Turram Rajulu proved to be futile by the dismissal of LTR Case No.172/STP/79 on 24.03.1982 and the dismissal/dropping of LTR Case No.985/94/OPT on 16.01.1995. He would also contend that the revenue authorities after due enquiry granted pattedar passbook in the name of the petitioner in respect of the lands in dispute and therefore, initiation of the proceedings against the petitioner under the provisions of the A.P. Scheduled Areas Land Transfer Regulation, 1959, as amended by Regulation 1 of 1970 at the instance of the 5th respondent is wholly unsustainable. In support of his submissions, reliance has been placed on the following decisions of this Court: 1) Mallina Venkatarao v. District Collector, WG Dist., Eluru[1] 2) Spl. Deputy Collector (TW) v. Datla Venkapathi Raju[2] 3) C.Ramalinga Raju v. Dist. Collector, Eluru, W.G. Dist.[3] 6. Learned Government Pleader for Social Welfare appearing for the respondents 1 to 4 submits that the principle of res judicata is not applicable in respect of the proceedings initiated under the provisions of the A.P. Scheduled Areas Land Transfer Regulation, 1959, as amended by Regulation 1 of 1970 and in which case the authorities are justified in initiating the proceedings against the petitioner on the representation of the 5th respondent. He would also contend that the dismissal of LTR Case No.1050 of 1974 is based on a document which is inadmissible in evidence and therefore, any finding recorded therein does not come in the way of the Agent to the Government-2nd respondent in entertaining the appeal at the instance of the 5th respondent. He laid much stress that the primary authority in LTR Case No.1050 of 1974 did not appreciate the material brought on record and thereby erred in dismissing the case and the said dismissal order came to be set aside by the appellate authority by giving cogent and convincing reasons and further the order of the appellate authority came to be confirmed by the revisional authority and therefore, the writ petition is devoid of merits and the same is liable to be dismissed. In support of his submissions, reliance has been placed on the following decisions: 1) Banguru Ramathulasamma v. Yedem Masthan Reddy & ors.[4] 2) N.Durga Rao v. Spl. Deputy Collector (TW), Kota Ramachandrapuram, W.G. Dist. & Ors.[5] 3) Vanka Venkanna v. Spl. Dy. Collector (TW), Paloncha[6] 4) Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors.[7] 5) M.Pocham v. Agent, State Govt., Adilabad[8] 6) Vaddi Veeraiah v. Agent to Govt., Khammam & Ors.[9] 7) Vemana Sornalamma v. Dy. Collector, TW, Rampachodavaram, EG Dist.[10] 7. There is no dispute with regard to the proposition of law laid down i n N.Durga Rao’s case (5 supra) that the orders passed in the proceedings initiated under the Regulations should not be treated as res judicata in subsequent proceedings, if the latter were initiated by a different party, or by the same party, on the basis of any further material. When the proceedings were initiated against the petitioner at the instance of Turram Surappa by the Special Deputy Collector (TW), Paloncha-3rd respondent in the year 1974, the petitioner took the specific stand that he purchased the property from Turram Surappa. The said Surappa attended before the Special Deputy Collector (TW), Paloncha-3rd respondent and admitted of the sale in the year 1963. Recording the statement of Surappa, the Special Deputy Collector (TW), Paloncha-3rd respondent dismissed the petition. The 5th respondent claiming to be the son-in-law of Surappa initiated the proceedings afresh. There is no fresh material placed on record. In that view of the matter, the primary authority committed grave error in ignoring the earlier order passed in Case No.1050 of 1974. The appellate authority and the revisional authority also committed the same mistake in not considering the order passed in Case No.1050 of 1974. In the absence of any fresh material, the proceedings initiated by the 5th respondent are wholly unjustified. Therefore, the order passed by the primary authority as confirmed by the appellate authority and the revisional authority is hereby quashed. 8. Accordingly, the Writ Petition is allowed. If the petitioner is dispossessed by virtue of the order passed by the primary authority, he is at liberty to make an application to the primary authority for redelivery of the possession of the property to him. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:21st November, 2008. cs ..... ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2. 2CD copies Form-NIC-OGS/WP{VSMI} [1] 2005 (4) ALD 498 [2] 2003 (1) ALD 386 (DB) [3] 2000 (4) ALD 443 (DB) [4] CRP No.1087 of 1996, dt.10.08.1998 [5] 2003 (3) ALT 453 (DB) [6] 2001 (2) ALT 709 [7] 2004 (1) ALD 85 (SC) [8] AIR 1978 ANDHRA PRADESH 242 [9] 1998(2) An. W.R. 606 (DB) [10] 1993 (1) ALT 409 = AIR 1993 ANDHRA PRADESH 312