IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE NINETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 3120 of 2001 Between: J.A.Azaraiah S/o.late John Shelly C-63 Patigadda, Begumpet Hyderabad ..... PETITIONER AND 1 The Special Court Under A.P.Land Grabbing (Prohibition) Act, 2 P.Kasturi Reddy S/o.P.Raghava Reddy Achuta Cooperative Housing Society H.No.10-2-789/68, Shantinagar Hyderabad 3 A.Satyanarayana S/o. late Nagabhushanam Achuta Cooperative Housing Society H.No. 6-3-609/1/A, Anandnagar Colony, Khairatabad Hyderabad 4 A.Subbaiah S/o. Mallikarjunaiah R/o.302, Purshotam Enclave 16-3-629/4, Anandnagar, Khairatabad, Hyderabad 5 Govt. of A.P., rep.by its Secretary Municipal Administration and Urban Development Department Hyderabad 6 The Hyderabad Development Authority rep.by its Vice Chairman 7 Municipal Corporation of Hyderabad rep.by its Commissioner .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ, order or direcdtion preferably one in the nature of writ of certiorari calling for the records pertaining to and leading up to the passing of the order Dt.2/8/2000 in LGC.No.84/1998 by the Special Court under A.P.Land Grabbing (Prohibition) Act, and consequently be pleased to quash the order Dt.2/8/2000 passed by the Special Court, under A.P.Land Grabbing (Prohibition ) Act, 1982 holding the same arbitrary and illegal and the one passed in illegal exercise of the jurisdiction vested in it, by the special court or alternatively be pleased to remand the case for a fresh finding concerning the possession of land as on the date of Ex.A21 and pass such other order. Counsel for the Petitioner:MR.S.AGASTYA SHARMA Counsel for the Respondent No.: . The Division Bench made the following Order: THE HON’BLE SMT. JUSTICE T. MEENA KUMARI A N D THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN. * * * WRIT PETITION NO. 3120 OF 2001 ORAL ORDER : {Per the HON’BLE SMT. JUSTICE T. MEENA KUMARI} The present writ petition is filed for a writ of ceritorari calling for the records pertaining to the order dated 02-8-2000 passed in LGC.No. 84 of 1998 by the Special Court under AP Land Grabbing (Prohibition) Act and consequently to quash the said order holding the same as arbitrary, illegal exercise of the jurisdiction vested by the Special Court or alternatively to remand the case for a fresh finding with regard to the possession of land as on the date of Ex.A21 certified copy of sale deed executed by the Achuta Co-operative Society in favour of Sri A.Subbaiah and to pass such other suitable orders as this Court may deems fit and proper in the circumstances of the case. 2. The case of the petitioner is that he filed LGC.No.84 of 1998 against the respondents seeking to declare the respondents as land grabbers and to evict the third respondent from the application schedule plot and consequently to direct the third respondent to deliver the vacant possession of the application schedule property; namely, plot no.30 in the layout of Achuta Co-operative Housing Society, admeasuring 342 sq.yards, situated in survey no.403 of Shaikpet village, Banjara Hills, Hyderabad, correlated to T.S.No.1 (Part), Block-N, Ward-11 of Shaikpet, valued at Rs.10,26,000/-, to the petitioner after removing the existing structures thereon. Originally, the Government of Andhra Pradesh allotted an extent of Ac: 4-00 of land in survey no. 403 of Shaikpet village to Achuta Co-operative Housing Society, Hyderabad. Government fixed the market value of the said land at Rs.25/- per sq. yard. Subsequently, the society issued a circular dated 14-6-1983 to its members stating that the layout for the said land was tentatively approved by the Municipal Corporation, Hyderabad and that the Managing Committee proposed to collect at the rate of Rs.30/- per sq.yard towards the value of the land and another sum of Rs.30/- per sq.yard towards betterment charges for the plots to be allotted to the members. The society directed the members to pay at that rate tentatively for each plot of 280 sq.yards pending final allotment of plots. Accordingly, the petitioner paid a sum of Rs.16,800/- to the society. Plots were allotted to the members by drawing lots. In the draw held on 21-11-1984 plot no.30 was allotted to the petitioner and proceedings to that effect was issued allotting plot no.30 admeasuring 342 sa.yards to the petitioner. Subsequently, the Secretary of the society issued a circular dated 06-10-1986 stating that pending registration, possession of plots would be formally delivered to the respective allottees. Accordingly, on 10-10-1986 the Secretary of the Society formally handed over possession of the application schedule plot to the petitioner pending registration of the plot. From time to time, the society issued several circulars to its members to safe guard and protect the plots from possible encroachers. While so, on 21-11-1990 the society issued a notice calling upon the petitioner to remit the balance amount of Rs.12,292/- said to be due by the petitioner. The petitioner disputed its correctness and sought for certain clarification from the society regarding the amount that is stated to have been due from him. In stead of clarifying the points raised by the petitioner, the society chose to cancel the allotment of the application schedule plot no.30 made to the petitioner by a letter dated 17-2-1991. On 9-4-1991 the petitioner sent a crossed cheque for Rs.12,292/- together with a letter to the society towards the entire balance amount said to be due from him. The Secretary of the society returned the said cheque dated 9-4-1991 to the petitioner on 16-4-1991. Again the petitioner sent the same crossed cheque dated 9-4- 1991 to the society on 7-5-1991 together with a letter requesting the society to receive the cheque and execute a sale deed in respect of plot no.30. The said letter together with the cheque sent to the society was returned un-served. Later during the year 1996, the petitioner came to know that the second and third respondents herein have admitted that the fourth respondent herein as a member of the society on 25-4-1991 re- allotted plot no.30 to the fourth respondent on 30-4-1991 itself ignoring the crossed cheque dated 9-4-1991 sent by the petitioner to the society. The said action of the respondents 2 and 3 in re-allotting and registering plot no.30 in favour of the fourth respondent is patently illegal and it is an attempt to regularize their illegal activity of land grabbing. The petitioner moved the statutory authorities under the A.P. Co-operative Societies Act questioning the action of the society in canceling the allotment of the applicant schedule plot to him. The Arbitrator by order dated 23-12-1996 made in ARC.No.15 of 1996 – G held that the cancellation of the allotment of plot to the petitioner by the society is illegal and the plot should be restored to him. Respondents 2 and 3 representing the society chose to prefer an appeal before the Co-operative Tribunal having colluded withy the fourth respondent. The petitioner had been in peaceful possession of the application schedule land since October 1986. While so, in the year 1997 during summer vacation the fourth respondent herein filed OS.No.141 of 1997 on the file of the Court of Vacation Judge and obtained ex-parte interim orders against the petitioner and under the guise of the said interim orders grabbed the possession of the application schedule plot in July 1997 in active collusion with respondents 2 and 3. Hence, the fourth respondent herein is liable to be evicted from the application schedule land and possession is liable to be restored to the petitioner. 3. On the other hand, the fourth respondent herein filed a counter before the Special Court, which was adopted by the respondents 2 and 3 herein by filing a memo to that effect. It is averred that the society was formed in the year 1980. The Government of Andhra Pradesh assigned an extent of Ac:4-00 of land in survey no.403 of Shaikpet village to the society. After obtaining permission for final layout, the society allotted plots to its members. Plot No.30 was allotted to the petitioner. The petitioner paid only Rs.16,800/- out of the total sale consideration amount of Rs.29,092/- leaving an unpaid balance of Rs.12,292/-. In spite of repeated reminders issued by the society, the petitioner did not pay the said balance amount. Hence, the Managing Committee issued a final notice dated 20-11-1990 calling upon the petitioner to pay within fifteen days the balance amount due by him. Similar notices were also served on some other members from whom also certain amounts were due. The petitioner though received the notice on 03-12-1990 did not choose to give even a reply to it much less paid the balance amount due from him. Under those circumstances, the Managing Committee of the society in its meeting held on 17-2-1991 cancelled the allotment of plot no.30 made to the petitioner as per its resolution no.5 dated 17-2-1991 and the same was duly communicated to the petitioner by registered post. Thus, after duly cancelling the original allotment the society re-allotted plot no.30 to the fourth respondent herein as per the resolution passed by the Managing Committee in its meeting held on 30-4-1991. Accordingly, the society executed a registered sale deed dated 16-5-1991 conveying plot no.30 to the fourth respondent. Since the date of purchase, the fourth respondent had been in lawful possession of the application schedule plot having acquired the same under a valid registered sale deed. Hence, he cannot be treated as a land grabber. 4. The petitioner initiated proceedings before the Arbitrator in ARC.No.24 of 1991 against the society challenging the action of the society in canceling the allotment of the plot to him. The Arbitrator allowed it without passing a speaking order. On appeal by the society in CTA.No.459 of 1994, the Co-operative Tribunal by its order dated 16-3- 1996 has set aside the order of the Arbitrator and remanded the mater to the Arbitrator for fresh enquiry. Again the Arbitrator allowed ARC.No.24 of 1991 (re-numbered as ARC.No.15/96-G) and directed the society to restore the plot to the petitioner. Since the society had already conveyed the said plot under a registered sale deed to the fourth respondent herein and delivered possession to him in 1991 itself, it preferred an appeal, CTA.No.60 of 1997 on the file of the AP Co-operative Tribunal against the order of the Arbitrator and the same was pending by the date of filing of the counter. Though the applicant knew fully well that the society re- allotted plot no.30 to the fourth respondent herein and registered it in his favour, the petitioner did not choose to make fourth respondent herein as party to the said proceedings before the Arbitrator. The fourth respondent herein obtained permission from the Municipal Corporation of Hyderabad and completed the construction in the said plot. When the petitioner started threatening to dispossess the fourth respondent herein from the application schedule plot, the fourth respondent herein filed OS.No.1926 of 1997 on the file of the Court of X Asst. Judge, City Civil Court, Hyderabad, for perpetual injunction. The Civil Court initially ordered statusquo and finally after contest allowed IA.No.331 of 1997 granting temporary injunction against the petitioner pending disposal of OS.No. 1926 of 1997. In the said suit, the petitioner who is a defendant, filed IA.No.970 of 1997 seeking to direct the fourth respondent herein not to proceed with construction in the said plot. The said interlocutory application filed by the petitioner was dismissed by the trial court. The petitioner preferred CMA.No.229 of 1997 against the said order and the same is pending. Further the petitioner filed another suit, OS.No.3653 of 1997 on the file of the Court of VIII Asst. Judge, City Civil Court, Hyderabad, seeking cancellation of the registered sale deed dated 16-5- 1991 executed by the society conveying plot no.30 in favour of the fourth respondent and also filed a petition seeking temporary injunction in the said suit. Thus, the petitioner not only initiated proceedings before the authorities under the Co-operative Societies Act but also filed a suit in the civil court in respect of the very same property and further came up with land grabbing case. 5. On the basis of the above rival contentions, the Special Court under A.P. Land Grabbing (Prohibition) Act, framed the following issues for trial: 1) Whether the applicant has title to the application schedule property ? 2) Whether the rival title set up by the third respondent (fourth respondent in this writ petition) is true, valid and binding ? 3) Whether the respondents are land grabbers within the meaning of Act XII of 1982 and if so, they are liable to be punished under the said Act ? 4) Whether the application is maintainable under the provisions of Act XII of 1982 ? 5) To what relief ? 6. On behalf of the petitioner, the petitioner-applicant himself examined as PW.1 and marked Exs.A1 to A27. On behalf of the respondents, the fourth respondent herein who is arrayed as RW.1 was examined and Exs.B1 to B4 were marked. 7. On appreciation of both oral and documentary evidence placed on record, the Special Court under AP Land Grabbing (Prohibition) Act, dismissed LGC.No.84 of 1998 holding that clause 11 of Bye-law 42 of the society contemplates that “every member shall pay the cost of the plot allotted to him within a period of 90 days from the date of allotment and betterment levy as charged by the society shall also be paid by the member within the time prescribed by the society”. Therefore, the petitioner-applicant violated clause 11 of bye-law no. 42, the society by its resolution dated 17-2-1991 duly cancelled the allotment. If the third respondent, who is fourth respondent herein, is a bonafide vendee under Ex.A21 from the society had taken possession of the plot and he cannot be branded as land grabber. The facts of the case do not disclose any act of land grabbing much less illegally taking possession of the land without any legal entitlement. No element of land grabbing or any activity of land grabbing on the part of the respondents can be inferred from the proved facts of the case. Further the respondents cannot be treated as land grabbers within the meaning of section 2 (d) of the Act in respect of the application schedule plot. 8. Questioning the judgment dated 02-8-2000 passed in LGC.No.84 of 1998, the petitioner filed the present writ petition. 9. During the pendency of this writ petition, the respondents 5 to 7 are impleaded as per orders of this Court dated 29-11-2002. 10. Sri S. Agasthya Sharma, the learned counsel appearing for the petitioner had taken this court through several facts narrated in the affidavit filed in support of the petition. The learned counsel for the petitioner vehemently contended that the society had no power or authority to suo moto cancel the allotment of plot allotted to the petitioner and that the resolution passed by the managing committee cancelling the allotment of plot is illegal and invalid. When the petitioner, who is a founder member of the society paid the entire cost of the land and also about 60% of the betterment charges to the society and raised a dispute regarding the quantum of the alleged balance amount stated to be due by the petitioner, the society should have referred the said dispute under clause (i) of Explanation to Section 61 (1) of the AP Co-operative Societies Act, 1964 to the Registrar for Arbitration and decision and then only taken further action in the matter as per the decision of the Arbitrator. The application schedule plot was delivered to the petitioner on 10-10-1986 itself as seen from Ex.A7, that in case the society intends to resume the said plot and recover its possession on the ground of breach of conditions of allotment by the petitioner the society should have filed a dispute before the Registrar as required under clause (iii) of Explanation to Section 61 (1) of the Co-operative Societies Act and that without taking any recourse to the said provision of law, the society cannot cancel the allotment and re-allot it to the third respondent by making certain false recitals of delivery of possession in the sale deed Ex.A21 executed by the society in favour of the fourth respondent herein. Further the learned counsel submits that the society did not actually take back possession of the plot from the petitioner by due process of law and as such the society could not have delivered possession of plot to the fourth respondent herein and that the fourth respondent herein in collusion with respondents 2 and 3 herein illegally occupied the application schedule plot and thereby committed an act of land grabbing as contemplated under section 2 (e) of the Act. The learned counsel for the petitioner submitted that the observation made by the Land Grabbing Court is not justified that the society is the owner and that the owner conveyed the application schedule property to the third respondent more particularly when the petitioner paid total cost of land in respect of the application schedule plot and was in possession of application schedule plot as on the date of execution of registered sale deed dated 16-5-1991. In para nos. 13 as well as 17 of the judgment, the Special Court observed in the judgment to the effect that “the managing committee-society could have taken a broad view of the matter and re-allotted the plot to the petitioner after receiving the crossed cheque dated 9-4-1991 and revoked the cancellation order and restored the plot to the petitioner before it was allotted to the third respondent” ought to have atleast perceived and verified the pleadings together with the supporting material documents particularly Exs.A6 and A7 and for holding that plot was not resumed by the society for handing over the delivery to the third respondent. Further the society does not have the power to cancel the allotment under bye-law no.42 (11) of the bye-laws of the society and procedure adopted by the society in cancelling the allotment of plot is wholly illegal. The Special Court is not justified din holding that the petitioner has not paid the balance cost of land and betterment charges to the society in spite of notice more particularly when the petitioner has paid the entire cost of land, as is evident from Ex.A17. The award passed by the Arbitrator and also from Exs.A6 and A7, since the petitioner was handed over with the possession of plot of land only after payment of entire cost of land. As per the material available on record, the land that was purchased in the year 1980 was not developed till 1990 by the society and the individual members allottees including the petitioner were delivered with possession of plot of land and they were protecting their possession and as such ought to have held that respondents 1 and 2 cannot deliver possession of the plot of land to respondent no.3 without resumption of land from the petitioner. The Special Court failed to consider that the land grabbing activity of respondents 1 and 2 commenced with cancellation of allotment and later with the return of cheque dated 09-4-1991 by respondents 1 and 2 under Exs.A13 dated 16-4-1991 in stead of revoking the cancellation of plot done under Ex.A10, since the resumption of plot was not done and the learned members of Special Court ought to have perceived and realized that complete stage is set for grabbing the said plot with consequent execution of registered sale deed by respondents 1 and 2 in favour respondent no.3 with false recitals in Ex.A21 concerning the possession as on 16-5-1991. 11. Heard the learned counsel for the petitioner at length as well as the learned Govt. Pleader for Assignment and Sri LVS Nagaraju, the learned counsel for respondent no.4, perused the material placed on record. 12. It is an admitted fact that Ex.A9 notice dated 21-11-1990 was served on the petitioner on 03-12-1990. Inasmuch as the petitioner failed to comply with the demand contained in Ex.A9 and failed to send a reply to it within the time stipulated in Ex.A9. The managing committee of the society at its meeting held on 17-2-1991 passed resolution no.5 cancelling the allotment of the plot in question earlier made in favour of the petitioner. Ex.A10 dated 17-2-1991 is the proceedings of the cancellation of allotment of plot issued by the society and the same was duly served on the petitioner. PW.1 the petitioner admits in his cross- examination that he did not address any letter to the society asking for any clarification. He claims to have made some oral request. Though denied by him, it was suggested to PW.1 in the cross-examination that he did not seek any clarification from the society and that inasmuch as he committed default in payment of balance amount within time, the society cancelled the allotment duly. The petitioner in his evidence stated that the society claimed excess amount of Rs.8000/- in its notice Ex.A9 dated 21-11-1990, that he met the Secretary of the society for seeking clarification from him regarding the excess amount and also informed him that he applied for a house loan from the Government for constructing a house in the application schedule plot, that the society people told him that they will send a revised demand and that without sending any clarification, the society illegally cancelled the allotment of plot under Ex.A10. The petitioner had not made any written request seeking any clarification from the society. The Special Court observed that as long back as in the year 1986 itself under Ex.A5 proceedings dated 02-5-1986 the allotment of Plot No.30 to the petitioner was confirmed and the revised charges were worked out and the balance due by the petitioner was shown as Rs.12,291-20 paise after deducting the amount of Rs.16,800/- that was already paid by him. The Special Court further observed that since 1986, the petitioner did not raise his little finger questioning the correctness of the said amount. After receiving Ex.A10 communication whereunder the allotment of plot was cancelled, the petitioner sent a crossed cheque dated 9-4-1991 for Rs.12,.292/- in respect of the entire balance amount due by him to the society together with a letter-original of Ex.A12 dated 9-4-1991 to the society requesting the society to receive the said payment made through crossed cheque and inform him the date for registration of the sale deed in his favour in respect of the application schedule land. It has to be observed that no where in Ex.A12 letter dated 9-4-1991 addressed to the society, the petitioner made a mention that he sought for certain clarifications orally from the society and he was waiting for the said clarifications and the delay was on that account. Moreover, there is no whisper in Ex.A12 regarding the alleged oral request made by the petitioner to the society for certain clarifications. After the receipt of cancellation order, the petitioner coolly sent a cheque for the entire balance due by him and requested the society to intimate him the date of registration of the sale deed. The Special Court also clearly observed that the failure on the part of the petitioner to pay the amount due by him within the stipulated time mentioned under Ex.A9 was not on account of non- furnishing of any clarification by the society but it was on account of non- availability of funds with him. It would appear that the petitioner applied for house building advance and the same was sanctioned under Ex.A11 on 26-3-1991 as mentioned under Ex.A12. By the time he received the first instalment of loan, the allotment was already cancelled. It was only thereafter, the petitioner hurriedly sent a cheque for the amount due by him. It is true that by the date when the petitioner sent a crossed cheque for the entire amount due by him to the society under Ex.A12 though the allotment of plot was cancelled, it was not re-allotted to