*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION No.21674 of 2008 % 19-12-2008 # Sri M.Venkataramudu, S/o.Dubba Narayana and others ...Petitioners Vs. $ The District Collector, Ananthapur District and others ...Respondents ! COUNSEL FOR PETITIONER: Mr.D.RAMESH ^ COUNSEL FOR RESPONDENTS: G.P. FOR REVENUE <GIST >HEAD NOTE: 1. (2005) 6 SCC 344 : AIR 2005 SC 3353 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.21674 of 2008 Between: 1 Sri M. Venkatramudu, S/o. Dubba Narayana, Ro. Regatipalli Village, Dharamavaram Mandal, Ananthapur District. 2 Sri M. Srinivasulu, S/o. Gurrappa, Ro. Regatipalli Village, Dharamavaram Mandal, Ananthapur District. 3 Sri S. Janardhan, S/o. Peddappa, Ro. Regatipalli Village, Dharamavaram Mandal, Ananthapur District. 4 Sri B. Ram Mohan Reddy, S/o. Nagi Reddy, Ro. Regatipalli Village, Dharamavaram Mandal, Ananthapur District. 5 Sri Kesavaiah, S/o. Subbanna, Ro. Regatipalli Village, Dharamavaram Mandal, Ananthapur District. ..... PETITIONERS AND 1 The District Collector, Ananthapur District, Ananthapur. 2 The Revenue Divisional Officer, Dharmavaram, Ananthapur District. 3 The Tahasildar, Dharmavaram Mandal, Ananthapur 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 will be pleased to issue an appropriate Writ or order more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in finalizing the list of persons in whose favour assignment pattas are to be granted for the government lands situated in Regatipalli Village, Dharmavaram Mandal, Ananthapur District as illegal, arbitrary. Counsel for the Petitioner: MR.D.RAMESH Counsel for the Respondents: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.21674 of 2008 ORDER: Five petitioners herein are residents of Regatipalli village. They filed present writ petition seeking a writ of Mandamus declaring action of respondents (District Collector, Ananthapur, Revenue Divisional Officer (RDO), Dharmavaram, and the Tahasildar, Dharmavaram Mandal) in finalizing list of beneficiaries for assignment of agricultural lands in the village as illegal and arbitrary. The affidavit in support of writ petition filed by first petitioner contains the following main allegations. It is submitted that the petitioners are landless poor persons and they eke out their livelihood by doing agricultural work and the petitioners are entitled for assignment of agricultural land in terms of the government orders which are in vogue. The respondents have proposed to grant agricultural land available in Regatipalli village, Dharmavaram Mandal in favour of landless poor persons. The 3rd respondent has notified the list of eligible persons through his proceedings in R.C.164/2008 (B) dt.14.08.2008. On seeking the said notification, the petitioners have informed about the ineligibility of several individuals to whom the 3rd respondent is proposing to grant assignment in their favour. It is submitted that as per board standing order 15 para 3, only landless and poor persons who directly engaged themselves in cultivation including harijans, ex-toddy tappers, backward communities and weavers shall be eligible for assignment. However the 3rd respondent has proposed to assign the land in favour of individuals who are not engaged in cultivation. It is relevant here to state that the proposed list contains several names who have land in excess of 5 acres. Apart from that the 3rd respondent has proposed to grant assignment in favour of the individuals including the petitioners who are in government service. Though several individuals who are residents of Regatipalli are entitled for assignment the 3rd respondent has not included their names in the proposed list. (emphasis supplied) In addition to the above, petitioners allege that they made a representation on 20.8.2008 informing about ineligible persons for grant of assignment. Local M.L.A., through letter dated 21.8.2008 also informed about ineligibility of individuals. In reply thereto, third respondent informed M.L.A., that it is difficult to verify landholding of proposed assignees. In spite of the same, without enquiring into ineligibility of individuals, third respondent started taking steps for assignment of land. Aggrieved by the same, present writ petition is filed. This Court while ordering notice passed the following order on 29.9.2008. Notice before admission. The petitioners state that the 3rd respondent, namely, the Tahsildar, Dharmavaram Mandal, has prepared a list of ineligible beneficiaries, and on the basis of the said list, is proceeding to distribute pattas. They state that they made representation to the District Collector as also the local MLA, who in turn informed the 3rd respondent to conduct an enquiry and prepare a list of eligible persons. However, it is the case of the petitioners that without conducting any enquiry and without weeding out the ineligible beneficiaries, the 3rd respondent is going ahead with the distribution of pattas as per the proceedings dated 14.08.2008. In the circumstances, there shall be stay of the order dated 14.08.2008 as also the distribution of pattas. Respondents moved this Court for vacating interim order by filing W.V.M.P.No.3445 of 2008 along with counter affidavit of third respondent. The background of the case as averred in the counter affidavit is as follows. In terms of Government orders in G.O.Ms.No.1142, dated 18.6.1954, Tahsildar, Dharmavaram, issued proceedings dated 01.11.1955 assigning an extent of Acs.1,357.65 of agricultural dry land in favour of Regatipalli Land Colonization Society (the society, for brevity). The society did not utilise land. It became defunct. The land was therefore resumed vide proceedings dated 27.7.1996; after obtaining permission of first respondent, duly appointing District Cooperative Officer as Liquidator. Out of Acs.1,357.65, an extent of Acs.1,095.00 was found to be fit for cultivation. 93 landless poor persons were assigned Acs.397.88 in proceedings dated 03.7.1997 and 04.7.1997. In the meanwhile, members of the society filed W.P.No.15405 of 2005 challenging the said assignment. The same was dismissed as withdrawn on 14.3.2008. An extent of Acs.797.12 which was earlier resumed from society situated adjoining Dharmavaram Municipality. As there is no Government land for housing scheme under Integrated Novel Development In Rural And Model Municipal Areas (INDIRAMMA) phase-II, an extent of Acs.198.15 is laid out. House sites were granted to 2776 beneficiaries in August 2008. As Acs.698.97 is still available for grant of assignment to landless persons, a decision is taken to assign these lands during Kharif season 2008. For the said purpose, three teams consisting of team leaders, Mandal Revenue Inspector-I, Mandal Revenue Inspector-II and Assistant Statistical Officer were constituted to prepare list of beneficiaries after conducting door-to- door survey in Regatipalli village and its hamlets, Seetharampalli and Mucchirami. After publishing notice in the villages by beat of tom-tom and conducting enquiry in a transparent manner, these teams submitted list of eligible beneficiaries. After receiving these lists, Tahsildar published notices in the villages vide office reference dated 14.8.2008 by calling for objections. Names of petitioners were not included in the list of landless poor persons. Counter affidavit, while denying allegations made by petitioners that they are landless poor persons, further states as follows. Petitioners have considerable extents of agricultural lands. They are not landless poor persons. They are not eligible for grant of assignment. First petitioner is resident of Bengaluru for long time. His father was assigned Acs.4.54 in survey No.380-1 and Acs.0.50 in survey No.382-1 vide D.A.R.Dis.No.60/1406, dated 27.6.1997. Second petitioner’s father has agricultural wetland admeasuring Acs.1.14 in survey No.240-1 of Regatipalli village in addition to the land admeasuring Acs.5.30 in survey No.609-1 and Acs.4.17 in survey No.609-5 situated at Kunuthuru. Mother of second petitioner is also owner of agricultural wetland admeasuring Acs.0.63 in survey No.240-2. Thus second petitioner’s family has Acs.11.24 by reason of which he is not eligible for assignment. Third petitioner is unmarried and therefore he is not eligible for assignment. He is member of joint family and his father has Acs.5.00 in survey No.410-1. Fourth petitioner’s father is owner of different extents of land admeasuring Acs.0.90 in survey No.298-D, Acs.1.57 in survey No.302-F, Acs.0.33 in survey No.227-1 HD, Acs.0.09 in survey No.226- 5C and Acs.0.13 in survey No.263-9. Mother of fourth petitioner is owner of land admeasuring Acs.3.16 in survey No.302-G; and in all family of fourth petitioner owns Acs.6.18 and that he being member of joint family is not entitled for assignment. Fifth petitioner’s father was assigned Acs.3.92 in survey No.278-2, which is a ceiling surplus land. He was also assigned land admeasuring Acs.2.30 in survey No.194-3. It is alleged that fifth petitioner’s father obtained assignment in excess of Acs.5.00 by making misrepresentation. It is further alleged that third petitioner is described as S.Janardhan, S/o.Peddappa and there is no such person in the village. But S.Janardhan, S/o.Dasappa is residing in the village. After finalizing the list, the same was submitted to Hon’ble M.L.A., who filed objections on the second list also. The list as again reexamined and final list of 140 beneficiaries has been submitted to M.L.A., to fix a date for convening meeting of Assignment Committee. So far the date has not been intimated. In the meanwhile, Pedda Veera Narappa and 26 others filed W.P.No.9093 of 2008 and V.Adinarayana and 28 others filed W.P.No.9789 of 2008. This Court passed orders not to dispossess them from their respective lands and not to alienate lands of society. In these writ petitions petitioners stated that they are landless poor persons. However it was brought to the notice of this Court that only two persons in W.P.No.9093 of 2008, namely, Smt.Jaitumbi and Batappa are landless poor persons and rest of 25 persons are not eligible for assignment. Respondents have taken necessary steps for assignment of land to eligible persons, after conducting enquiry in transparent manner by the teams constituted for preparation of list of eligible beneficiaries. The list was also published and all objections received were considered. Final list prepared has to be approved by Assignment Committee and petitioners filed writ petition under misapprehension that itself is a final list. It is not a final list and no proceedings are issued by Assignment Committee for grant of pattas. The writ petition was heard at the admission stage on 18.11.2008. Having regard to the counter averments wherein it has been brought out that petitioners made false statements and obtained interim orders stalling entire welfare scheme, this Court gave opportunity to petitioners to file reply affidavit. Accordingly a reply affidavit is filed. In the reply affidavit petitioners admit that their families own agricultural lands. But they assert that for the purpose of considering whether a person is a landless poor person or not, entire family holding cannot be taken into consideration. They have given property particulars of each family to contend that third respondent has included names of persons like Tummala Jyothi, Babaiahgari Ramanamma, Babaiahgari Venkatalaxmamma, Rajeshwaramma, Lalithamma and Nagamani of Jangam Reddygari family, Pasala Narayana Swamy and Bogea Nagamani, though they also own joint family holding in excess of eligible limit. They allege that initially on 12.9.2008, 243 persons were included in the list as eligible persons and subsequently in the list dated 27.9.2008 it was found that 140 persons only are eligible for assignment as on 12.9.2008, which itself indicates that list is not made according to Rules. Learned Counsel for petitioners submits that the names of petitioners were not included on the ground that their joint families own agricultural lands. He submits that third respondent discriminated petitioners and that names of other persons whose joint family holdings exceed ceiling limit are included in the list without following the procedure. Opposing writ petition, learned Assistant Government Pleader for Revenue (Assignment) submits that preparation of list of eligible beneficiaries was done by third respondent in accordance with guidelines and when objections were raised, again after reexamining preliminary list a final list is submitted to M.L.A. The list has to be finally examined by Assignment Committee before pattas are granted by third respondent. He also submits that petitioners obtained interim orders by suppressing these facts, and therefore, writ petition is liable to be dismissed. From the material on record and submissions of rival Counsel, following position emerges. Government of Andhra Pradesh has taken up programme for assignment of agricultural lands during Kharif season 2008 to lanndles poor persons. Third respondent on enquiry found that an extent of about Acs.699.00, which was hitherto had been allotted to Colonisation Society, is available in Regatipalli village. What is procedure to be adopted for identifying the beneficiaries? Petitioners have not placed before this Court any Government order containing such guidelines. Be that as it is, as per counter averment, which remains uncontraverted, Tahsildar constituted three committees of Mandal Revenue Inspector-I, Mandal Revenue Inspector-II and Assistant Statistical Officers. They announced notice by tom-tom, enquired in the villages and prepared list of eligible persons. After receiving the list, third respondent again published notice on 14.8.2008 in the village inviting objections. At that stage, names of petitioners were not included as they are not landless poor persons. None of the villagers raised objection. But M.L.A., Dharmavaram, raised objections. Preliminary list was reviewed in the light of objections of M.L.A. Again another list was published on 12.9.2008 after eliminating ineligible persons and including eligible persons. This list consisted of 243 beneficiaries. The list was put on notice boards of the offices of Gram Panchayat, Tahsildar, MPDO and RDO, Dharmavaram. None of the villagers, who are not included in the list, raised any objection, but M.L.A., again raised objection. After reexamining the list, yet another list, which petitioners wrongly called final list, consisted of 140 names was prepared. It appears that final list prepared by the office of Tahsildar has to be considered by Mandal Assignment Committee and only after their approval pattas have to be granted. Therefore, list of 140 beneficiaries was submitted to M.L.A., (presumably for the reason that M.L.A., is Chairman of Mandal Assignment Committee). Be it noted that list was submitted to M.L.A., vide Tahsildar’s communication in Rc.No.164/2008/B. At that stage, writ petition is filed alleging that though petitioners are landless poor persons, their names are not included in the list of beneficiaries but the names of those persons, who own lands exceeding ceiling limit, have been included. This allegation of petitioners is totally incorrect. Along with writ petition, petitioners have enclosed so called final list of beneficiaries prepared after consenting with M.L.A., Chairman of Mandal Assignment Committee. Though names of eight persons mentioned by petitioners in reply affidavit, who allegedly own lands, have been shown in the list, in the remarks column Tahsildar clearly indicated that they are not eligible for assignment because these persons have more than Acs.5.00, not residents of village or they belong to one family. As rightly pointed out by learned Assistant Government Pleader that this list has to be finally approved by Assignment Committee and it does not give cause of action to anybody to challenge the same. Welfare scheme floated by Government for distribution of agricultural land to landless poor persons is essentially an executive scheme. Such schemes ordinarily cannot be enforced in writ petition, unless it is shown that while distributing land, authorities failed to act fairly, unarbitrarily and in non-discriminatory manner. No person can claim assignment of land as of right though every eligible person has right to claim that his case for assignment be considered in fair manner. Third respondent has prepared a preliminary list, revised it in accordance with objections raised by M.L.A., and again revised it keeping in view observations of M.L.A. After such elaborate exercise, which was preceded by enquiry in the village by three team leaders, final list is submitted to Assignment Committee. It is only the list that is finally approved by such committee, which can be the basis for allotment of agricultural land. Even before this exercise is done, petitioners filed instant writ petition making all false allegations. Therefore, writ petition is liable to be dismissed. Secondly, whenever list prepared by Tahsildar was notified in the village, none of the villagers including petitioners raised any objection. Curiously every time, Chairman of Assignment Committee (M.L.A., Dharmavaram) went on raising objections. When Assignment Committee itself can take final decision why Hon’ble M.L.A., went on raising objections? It is quite inexplicable. Certainly there is something, which does not meet the eye. However, third respondent cannot be said to have acted unfairly in any manner. Procedure adopted by third respondent was fair and transparent. The writ petition therefore deserves to be dismissed. Before parting with this case, this Court must observe that when a party obtains interim orders having effect of staying entire welfare measures taken by the Government, and while passing order the Court was guided only by affidavit accompanying writ petition, such a party has to be mulcted with exemplary costs if ultimately found that affidavit on oath was filed making all incorrect allegations. If frivolous cases are filed making all false allegations, it would ruin the system. Why parties approaching this Court get away by making all such false allegations? In Salem Advocate Bar Assn. v. Union of India[1] Supreme Court made following observations. Section 35 of the Code deals with the award of costs and Section 35-A with the award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of the award of costs and compensation. Under Section 95 costs can be awarded up to Rs.50,000 and under Section 35-A, the costs awardable are up to Rs.3000. Section 35-B provides for the award of costs for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In the circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to the other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the costs shall follow the event and if not, reasons thereof shall be stated. The award of the costs of the suit is in the discretion of the court. In Sections 35 and 35-B, there is no upper limit of amount of costs awardable. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer’s fee, typing and other costs in relation to the litigation. (emphasis supplied) Petitioners approached this Court making allegations, which are extracted supra. In paragraph 2 of affidavit filed accompanying writ petition, they alleged that they are landless poor persons and eking out their livelihood as agricultural workers and that they are entitled for assignment of land in terms of Government orders. In the same affidavit, they also alleged that third respondent proposed to grant assignment in favour of individuals including petitioners, who are in Government service. Both these statements are false, even to the knowledge of petitioners, and therefore, in reply affidavit they come forward admitting that they belong to joint families, which own agricultural lands. If only petitioners had not made allegations that they are landless poor persons in all probability this Court would not have granted orders of stay. By reason of stay, distribution of agricultural land to eligible poor persons was stalled and petitioners must bear responsibility for this. The Court exercising powers of judicial review under Article 226 of Constitution cannot even unintentionally met injustice to large number of persons who are not before this Court. If larger public interest has to be sub- served, in some cases, individual interest has to yield. Keeping this in view, this Court is of considered opinion that petitioners should be directed to pay exemplary costs. Having regard to the background of petitioners, this Court directs petitioners to pay Rs.5,000/- (Rupees five thousand only) each as exemplary costs. This amount shall be paid to District Legal Services Authority (DLSA), Ananthapur, within two months from the date of receipt of a copy of this order, failing which, it shall be open to DLSA, Ananthapur, to execute this order in the Court of Principal Junior Civil Judge, Dharmavaram, or other jurisdictional civil court and submit compliance report to this Court. The writ petition is accordingly dismissed with exemplary costs as above. _____________ (V.V.S.RAO,J) December , 2008. NOTE: 1) The Registrar (Judicial) is directed to place Compliance report submitted by DLSA, Ananthapur, before this Court. 2) L.R. Copy be marked. (By order) YS [1] (2005) 6 SCC 344 : AIR 2005 SC 3353