IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY THE THIRTIETH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.150 of 2001 Between: 1 K.Anjaiah S/o.K.Rama Goud R/o.Burugupally Mominpet Mandal R.R.District. 2 K.Narahari S/o.K.Rama Goud R/o.Burugupally Mominpet Mandal R.R.District. ..... PETITIONERS AND 1 The Asst.Commissioner of Proh & Excise R.R.Dist, Hyderabad. 2 The Dist Collector R.R.Dist, Lakdikapul, Hyderabad. 3 Mandal Revenue Officer Mominpet Madal Mominpet,R.R.Dist. 4 Savithramma W/o.Late Gagaram R/o.H.No.5-10-90,Bind Line,Prakash Nagar,Hyderabad. 5 Gyaneshwar S/o.Narsimhulu R/o.Kyasaram Village Mominpet Mandal R.R.Dist. .....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 To issue a writ,order or direction, more particularly one in the nature of Writ of Mandamus, directing the respondents to forthwith hand over to the petitioners Ac.11.26 Guntas of land alongwith the house bearing Door.No.1-42, in Sy.No.17 and 121 (New Survey Nos.124 and 128/2) of Burugupally village,Mominpet Mandal,R.R.Dist and pass such other order or orders. Counsel for the Petitioner: MR.S.SREERAMACHANDRA MURTHY Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following: Form-NIC-OGS/WP{CHP} THE HON'BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION No.150 of 2001 ORDER: The petitioners viz. K.Anjaiah and K.Narahari who are the sons of Sri Rama Goud, S/o.Malla Goud @ Yella Goud filed the present writ petition, seeking to issue a Writ of Mandamus, declaring the action of respondent Nos.1 to 3 in auctioning and purchasing an extent of Ac.14.21 guntas and a house in Sy.Nos.117 and 121 (New Sy.Nos.124 and 128/2) situated at Burugupalli village, Mominpet Mandal, R.R.District, for an appalling low rate of Rs.60/- belonging to their father Rama Goud, without following the mandatory provisions, and assigning the same to respondent Nos.4 and 5, as illegal and arbitrary, fraudulent and consequentially direct respondent Nos.1 to 3 to redeliver the said landed property along with the tiled house to the petitioners. 2. It is the case of the petitioners that their father Rama Goud is the absolute owner of Ac.11.25 gts. of agricultural land in Sy.Nos.117 and 121 (new Sy.Nos.124 and 128/2) and a house bearing Door No.1-42, situated in the said land. It is stated that the father of the petitioners Rama Goud had obtained toddy contract of Marpally Kalan village of Marpally Mandal for 1367 fasli, corresponding year of 1957-58, and he mortgaged his landed and house properties as security for payment of rentals for the said toddy shop. It is further stated that the father of the petitioners Sri Rama Goud fell in arrears of rentals to the Government to a tune of Rs.3,393/- and therefore, the Government initiated recovery proceedings under the provisions of Revenue Recovery Act for the sale of the mortgaged property. It is stated that the first auction was conducted in 1958 for a sum of Rs.2,725/-, but the auction purchaser failed to pay the auction amount and therefore, after six years, it was decided to auction the said properties fixing the upset price of Rs.5,000/- for the land and Rs.2,000/- for the house. It is also stated that the said property was auctioned on 29.07.1964, pursuant to the auction notification dated 04.05.1964, published on 29.05.1964, and in the auction the landed property was auctioned for Rs.925/- in the name of one Sayappa and the house property was auctioned for Rs.1,800/- in the name of one Ramaiah. But, the said highest bidders were not credited the bid amount, and hence the said auction was cancelled and the properties were again notified for auction. 3. As no one come forward to purchase the afore mentioned properties, the Government, under Board Standing Order No.45, purchased the land for Rs.10/- and the house for Rs.50/- and for total amount of Rs.60/- the Government purchased the entire property. But it is stated that though the father of the petitioners Sri Rama Goud is owner of Ac.11.25 gts. the sale certificate was said to have been issued for Ac.14.58 gts. It is stated that the petitioners did not at all know about the sale of the said auction as they are being minors by that time and no notice was issued to the legal heirs, and the petitioners accordingly contended that the whole action of the auction proceedings under the Revenue Recovery Act are illegal, arbitrary and unsustainable and against the principles of natural justice. It is further stated that purchasing the said entire property for a paltry sum of Rs.60/- is arbitrary and the said purchase of the property by the Government for nominal price cannot be approved and it cannot be legalized. It is stated that the Government played fraud on the poor man’s property. 4. The learned Government Pleader for the respondents did not dispute about the ownership of the said property and purchase of the said property for a sum of Rs.60/- by it. But, it is only stated that an extent of Ac.4.03 gts. in Sy.No.124 was assigned in favour of Sri G.Gnaneswar, the 5th respondent herein, and an extent of Ac.5.03 gtrs. in Sy.No.128 was also assigned in favour of G.Gnaneswar, an Ex- Serviceman, total assigned land is Ac.9.06 gts. in 1979 leaving the balance of Ac.2.09 gts under the possession of the Government. It is stated that the petitioners have cleared the entire excise arrears of Rs.3,400/- vide challan No.0006773, dated 30.03.1996 paid at State Bank of Hyderabad, Gruhakalpa Branch, Hyderabad. It is not in dispute that the Government came up with the proposal to write off the interest, penalties if the principal amount is paid. It is further contended by the learned Government Pleader that pursuant the said payment, the Assistant Commissioner of Excise addressed a letter to the Mandal Revenue Officer in proceedings No.C3/17346/58, dated 05.03.1997, requesting him to inform about the possession of the lands in question and also to submit copies of the connected papers. It is stated that at that time only the petitioners came to know about the alleged purchase of the said land by the Government is incorrect. 5. The learned Government Pleader for the respondents also submits that the 2nd petitioner K.Narahari, earlier filed W.P.No.9485/1995 to issue a Writ of Certiorari calling for certain records and to hand over the subject property in his favour, but the said writ petition was dismissed by the Division Bench of this Court by order dated 09.09.1997. 6. A perusal of the Division Bench Judgment goes to show that the Division Bench dismissed the writ petition on the ground that the petitioner has not explained the delay properly, questioning the auction of the said properties in 1965 and therefore the property which was auctioned more than 30 years ago cannot be set aside after lapse of so many years. 7. Thus, it is contended by the respondent Nos.1 to 3 that as the similar writ petition filed by the 2nd petitioner was already dismissed, it is not open for the petitioners to question the same, and it can operate res judicata. 8. The learned counsel for the petitioners submits that the 2nd petitioner filed WPMP.No.32928 of 2007, seeking permission to delete the 2nd petitioner as he is not necessary or proper party to the writ petition, and the earlier dismissal of writ petition against the 2nd petitioner cannot operate res judicata against the 1st petitioner. 9. I have perused the records and the counter filed in the writ petition. It is not in dispute that the father of the petitioners is the owner of the subject property. It is stated that Ac.4.03 gts in Sy.No.124 was already assigned in favour of the 5th respondent being Ex-Serviceman in the year 1978-79 and an extent of Ac.5.03 gts in Sy.No.128 was also assigned in his favour. It is stated that the remaining land of an extent of Ac.2.19 gts. in Sy.No.128 is under the possession of the Government. 10. On the other hand, a perusal of the judgment of the Division Bench of this Court in W.P.No.9485 of 1995, dated 09.09.1997 goes to show that the Government made a representation before the Division Bench stating that the Government secured the lands and the house by bidding one rupee excess of the amount due. In those circumstances, the Division Bench dismissed the writ petition. But the said statement made before the Division Bench is factually incorrect as the Government did not secure the said lands for one rupee more than the arrears as the arrears amount was Rs.3,393/- and if one rupee is added the Government bid should have been Rs.3,394/-, but the record actually goes to show that the Government secured the said properties for a sum of Rs.60/- only. Thus, it is contended that the Government played fraud even on this Court in getting the earlier writ petition dismissed and therefore, fraud vitiated everything and the petitioners are entitled to question the said action once again. 11. The Excise arrears due and payable by the father of the petitioners are not at all in dispute. Merely because the arrears have not been recovered, it cannot be said that the properties can be retained on payment of sum of Rs.60/- alone. As observed by the Division Bench that the Government retained the property towards the entire arrears plus one rupee more is factually incorrect, and therefore, I am of the opinion that the aforesaid judgment cannot operate as res judicata as the said writ petition was got dismissed by placing incorrect facts which amounts fraud played on this Court. 12. It is not open for the Government to contend that the entire property of the defaulter has been secured for a paltry sum of Rs.60/- and still there are arrears payable by the defaulter as the amount paid by the Government is not equal to the arrears. The record produced by the Government Pleader do not indicate that any notice had ever been issued either to the defaulter or to the legal heirs with regard to the retention of the said properties by the Government under the Board Standing Orders and no order was communicated to the petitioners, and therefore, it cannot be said that the petitioner had knowledge about the said retention of the properties pursuant to the Board Standing Order. The 2nd petitioner is only came to know the fraud played by the Government in 1995 and therefore, he has questioned the said action of auction in 1995, but on placing the incorrect material and information the Government succeeded in getting the said writ petition dismissed. The Government Pleader produced the entire records which goes to show that the retention of the said properties of the defaulter in auction for a paltry sum of Rs.60/- is contrary to the Revenue Recovery Act. The Government could not have purchased the said property in less than the upset price or less than the arrears of amount. However, as an extent of Ac.9.06 gts. was already assigned in favour of the 5th respondent and the assignment was not at all questioned and no notice was served on the 5th respondent, I am of the opinion that the said assignment already made in 1979 cannot be interfered with. But, however, in view of the fact that the petitioners have paid the entire arrears of amount, I am of the opinion that the petitioners are entitled at least for re-delivery of the remaining land of an extent of Ac.2.19 gts. which is said to be in the possession of the Government at present. 13. Having regard to the facts and circumstances of the case, the Writ Petition is allowed in part, directing respondent Nos.1 to 3 to re-deliver the remaining land of an extent of Ac.2.19 gts.in Sy.No.128 to the petitioners. No order as to costs. _____________________ V.ESWARAIAH,J Dated: .04.2008 Dsr Note: Furnish copy in one week B/o bcj .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Asst.Commissioner of Proh & Excise R.R.Dist, Hyderabad. 2 The Dist Collector R.R.Dist, Lakdikapul, Hyderabad. 3 Mandal Revenue Officer Mominpet Madal Mominpet,R.R.Dist. 4 2. 2CCs to 5. 2CD copies