High Court · 2008

Judgment

(PER Hon’ble Sri Justice B.Prakash Rao) Since these appeals involve common question, hence they are being taken up together for disposal at the admission stage itself with the consent of the counsel on either side. T he appellants in these appeals are the contesting respondents in the writ petitions filed by the respondent No.1 herein, who by way of these appeals under Clause 15 of Letters Patent Act seeks to assail the orders of the learned Single Judge in interlocutory applications in WPM P.No.9645 of 2008, WPM P.No.13269 of 2008, WPM P.No.36638 of 2007 and WPM P.No.20417 of 2008, pending the disposal of the main respective writ petitions. T he order under appeals, which is an ad interim ex parte order, reads as follows: “Status quo obtaining as on today with regard to possession shall be maintained until further orders.” For convenience sake, the prayer in the interim applications is extracted, which reads as follows: “to direct the Respondents not to dispossess the petitioners from their respective house plots situate in S.No.78 situate at Hafeezpet village, Serilingampalli M andal and M unicipality, Ranga Reddy District, pending disposal of the writ petition.” Also for the convenience sake, the prayer in the Writ Petitions is extracted, which reads as follows: “to issue a Writ of M andamus or any other appropriate Writ, order or direction declaring orders of the 1st respondent in M emo.No.28908/JA/1/2004-1 dt.

5-11-2004 and the consequential orders of the 5t h respondent in Proceedings No.B/891/2005 dt 1-12- 2005 as arbitrary, illegal, contrary to the provisions of the Hyderabad (Abolition of Jagirs) Regulations, 1358 F and the A.P. Inams (T.A) Abolition Act, 1955 and the Judgment of the Board of Revenue in File No.A2/79/69 dt. 29-12-1969 and consequently set aside the same with a consequential direction that we should not be dispossessed from their respective house plots situate at Hafeezpet Village, Serilingampalli M andal and M unicipality, Ranga Reddy District without following the due process of law and grant such other relief or reliefs as this Hon’ble Court may feel fit and proper in the circumstances of the case.” In all these writ petitions, the petitioners sought to assail the orders of the Government in M emo.No.28908/JA/1/2004-1 Revenue (J.A.1) Department, dated 5-11-2004, which reads as follows: “T he attention of the Collector, R.R.

Dist, is invited to the references cited. In the reference 6t h cited, Govt. after examining the entire matter referred to by the Collector in the references 1st to 3rd cited and the report of the Chief Commissioner of Land Administration in the reference 4t h & 5t h cited, have decided to entrust the matter to CCLA for examining the issue thoroughly by convening meeting of all the concerned officials and then submit a detailed report to Government covering all the lands involved in C.S.No.14/58 village wise, Sy.No.Wise. already passed

In the reference 7t h cited, the Special Chief Secretary & Chief Commissioner of Land Administration after conducting number of meetings observed that since the title of private parties in respect of lands in C.S.No.14/58 has become final as per the preliminary decree in C.S.No.14/58, the claim of the Government in all such cases will be subject to Supreme Court in SLP.No.10622, 10623/01 and 4463 to 4470/02. T he Special Chief Secretary & Chief Commissioner of Land Administration has stated that, it is clear that no useful purpose will be served in pursing these cases any longer and also stated that, there is no option left to the Govt. except conceding the request of the purchasers from the decree holders to effect mutation in their favour. T he Special Chief Secretary & Chief Commissioner of Land Administration informed that, the Commissioner (Legal Affairs) has given his opinion saying that there is no need for pressing the court for passing the final decree. He had expressed his opinion that a preliminary decree is regarded as embodying the final decision of the court passing that decree i.e., there is not much of difference between a preliminary decree and a final decree. T he Spl. C.S & CCLA has therefore requested the Government that the Collector, Ranga Reddy District may be permitted to effect mutation in the land records in respect of in Sy.No.145, 163 and 172 of Hydernagar and Sy.No.77, 78, 79 and 80 of Hafeezpet Serlingampally M andals, Ranga Reddy District covered under C.S.No.14/58, following various orders of the Courts. Balanagar Village Village Govt after examining the matter hereby permit the Collector, Ranga Reddy District to effect the mutation in Land Records in respect of the lands in Sy,.No.145, 163 and 172 of Hydernagar and in Sy.No.77, 78, 79 and 80 of Hafeezpet Serlingampally M andal respectively of Ranga Reddy District as recommended by the Special Chief Secretary & Chief Commissioner of Land Administration, provisions of Urban Land (C&R) 1976 A.P. Agricultural Ceiling Act, 1973 and A.P. ROR Act, 1989 etc. and also following various orders of Courts. Balanagar following subject T he Collector, Ranga Reddy District is requested to take necessary action accordingly and not to seek any further clarification.” Assailing the said order, the case of the writ petitioners apart from reiterating on merits in regard to the title and possession, it was alleged that the Government has absolutely no power to issue any such instructions either under the provisions of the Urban Land (C&R) 1976 or A.P. Agricultural Ceiling Act, 1973 or even under A.P. Record of Rights Act, 1989. Since all these legislations are self-contained with due procedures and remedies at different hierarchies as provided thereunder, and the Government could not have issued any such sweep directions, hence the writ petitions. Pending the aforesaid writ petitions, the petitioners as narrated above, sought a positive interim direction by invoking Section 151 C.P.C against the appellants and other respondents not to interfere with the peaceful possession and enjoyment of their land and houses. T he main grievance of the appellants in these appeals are to the effect that having regard to the nature of writ petition as has been filed and framed assailing the orders of the Government in M emo, no such interim relief could have been entertained or given in exercise of powers under Article 226 of the Constitution of India and more so the orders of status quo as granted is a most disturbing one, as it is neither a positive one in favour of anybody, and it is giving rise to many of the practical problems on the site and leading to law and order problem. T herefore, no such order could have been passed. Even on the merits, it has been stated that the petitioners could not have sought for such relief, more so, as interim measure having regard to the earlier litigation where they were unsuccessful in getting any orders, hence these appeals. T he learned counsel for the appellant pointed out that even though the appellants have filed comprehensive counter affidavits along with state vacate applications in WVM P.1325 of 2008 in WPM P.No.9645 of 2008 WP.No.7334 of 2008, WVM P No.1571 of 2008 in WPM P.No.13269 of 2008 in WP.No.10093 of 2008, neither the vacate stay applications are posted nor they have been for disposal. Instead, the respondents/writ petitioners have filed contempt case CC.No.481 of 2008 alleging violation of the said order and they are pressing for its disposal rather than the disposal of the vacate application. Sri B.Adinarayana, learned counsel appearing for the respondents herein raised the preliminary objection as to the maintainability of the appeal on the ground that the appellants having filed vacate stay applications, they could not prefer an appeal to this Court and hence the appeals are not maintainable as long as no final orders are passed. Further, it was also pointed out that on the face of it, the impugned M emo issued by the Government is totally illegal and beyond the scope of the very different legislations as mentioned therein and there could not be such directions issued the authorities by Government, and therefore having made out a good case they are entitled to interim relief for direction of possession. Having considered these and other submissions as made across the Bar from both sides, the main point which arises for consideration is as to whether on the facts and circumstances, the order under appeal as to maintaining the status quo is liable to be sustained? As regards the preliminary objection as maintainability of the appeal is concerned, it is not in dispute that the appellants have filed counter affidavits on 29-5-2008 along with vacate applications WVM P.1241 of 2008 in WPM P.No.35568 of 2007 in WP.No.27205 of 2007, WVM P.1325 of 2008 WPM P.No.9645 of 2008 in WP.No.7334 of 2008, WVM P No.1571 of 2008 in WPM P.No.13269 of 2008 WP.No.10093 of 2008 and the same are not posted nor came up for consideration. It is also not disputed on behalf of the respondents that they have already filed a contempt in CC.No.481 of 2008, and the same is posted on the date of the arguments in these cases i.e., on 26-09- 2008, and they are pressing for the same. T here is absolutely no justification from any quarter not to take up the vacate stay applications and pass orders on merits finally so that the parties would know where they stand. Further, it is also now well established that whenever a vacate stay application is filed, the question of proceeding in contempt as against such interim order is not proper. Having regard to the grievance as pointed out on behalf of the appellants and also where powers as provided under Clause 15 of the Letters Patent Act to obtain ad-interim order or a final one appeals are maintainable and there are catena of decisions in support thereof. T herefore, we reject the preliminary objection raised by the respondents herein in this Court. Coming to the order, which is now assailed in all these appeals, it only reads to maintain the status quo in regard to the possession. On the face of it, the said order is not a positive or a mandatory in favour of one or against any other. It is to be borne in mind that the main substantive case filed by the respondents/petitioners is invoking the extraordinary jurisdiction under Article 226 of the Constitution of India assailing certain orders issued by the government to various Courts. Be that as it may, except considering any relief as interim measure in regard to such proceedings like stay or suspension of the same, the question of dealing the matters touching upon the possession of any individual or a disputed possession in such exercise of jurisdiction does not arise and cannot be entertained. T he respondents/petitioners has sought for a positive direction virtually by way of an injunction like the one under Order 39 Rules 1 and 2 C.P.C seeking a directions (injunction) against the respondents not to interfere with the possession of the property in question, however the Court did not accede to such request and instead the status quo was directed to be maintained. What status quo means there cannot be any dispute, it is only to say that the state of things as exists shall be maintained. T his itself would not clarify or categorically recognize anybody’s possession or the factum that some other one is not in possession. It only states, to reiterate, to maintain the things in as is where is position, especially in such litigations with several checkered events and pro c eedi ngs inter se parties and further when the possession being in dispute, it cannot be said that one is in possession or not in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India nor this Court would venture to go into such questions and either recognize or give a finding either way. T herefore, be it an order not recognizing the petitioners’ possession or doubting the same, it necessarily follows that the Court should be slow in passing any orders. It is also now well established that orders like nature of status quo would always lead to many a dispute on the site and create law and order problem as well, since both the parties claim that they are in possession, it would be difficulty for the parties to implement the orders of this Court to come to aid of any party. T herefore, from all perspectives the endeavour on the part of the Court should be to see that no orders of status quo be passed in an application of this nature. Even in an application purported to have been filed under Order 39 Rues 1 and 2 C.P.C, it only follows that either the Court has to recognize somebody’s possession and grant order or to refuse to grant the same. Having doubted the possession should not bring forth any intermediary situation, which leads once again for both the parties to claim possession and try to take advantage of such orders even by a person who is not in possession. On a bare look at prima facie version, the impugned M emo gives certain directions for effecting the mutation in land records, subject to following the provisions of those Acts, and make reference to the proceedings in C.S.14 of 1958 pending on the file of this Court and a preliminary decree therein In the writ petitions the respondent No.1 claim that they are the owners and possessors of the house plots, respectively, in terms of agreement of sales executed in the year 1999, 2000 and 2001 from their vendors, who in turn are purchasers under the earlier agreement of the year 1989 from the vendors K.Ramaswamy and 12 others and Kasim Nawab Jung represented by a G.P.A etc., and they claim that the possession was delivered. T hey also referred to the earlier title of predecessor M /s Nimmala Veeramallaiah and the said M /s Ramaswamy, the vendor of the petitioners coming into possession in the year 1960 under an agreement of sale dated 10-10-60 from M /s Nimmala Veeramallaiah and others. It is their case that no sale deeds could be executed on the ground of pendency of inam enquiry and C.S.No.14/1958. T here is also reference to several other proceedings including a preliminary decree passed in 28-6-1963 in CS.14/1958. T herefore, from out of the several such checkered events, proceedings, orders etc., the petitioners respectively claim that the Government could not have issued any such directions. In the counter affidavits filed by the appellants herein they denied the claim of the petitioners on title and possession and refer to the proceedings in CS.14/1958 and preliminary decree on 28-6-1963 where the Government is a party as defendant No.53, claiming that the lands are that of government. However, the claim was rejected by this Court and the said orders have become final. Some of the shareholders as per the said preliminary decree sold their undivided share in favour of HEH Nizam and Nawab Khazim Nawaz Jung who are impleaded as defendants 156 and 157, of which defendant No.156 sold out his share in favour of the defendant No.206, who has been impleaded later. Accordingly, the Receiver allotted the land to defendants 157 and 206 and there is direction application Nos.19 and 114 of 1973, dated 5-7-1974 wherein the Government was directed to deliver the possession of the lands. T he government has field application No.44 of 1982 for deletion of the said lands, which was rejected and the appeal filed against the said order in O.S.A.No.1 of 1985 was dismissed by the Division Bench on 24-12-1989. T he Government filed a Special Leave Petition in the Supreme Court and the same was withdrawn on the ground that the State of A.P is seeking to file appeal against the preliminary decree. However, the said appeal filed by the Government with delay was dismissed holding that there are no sufficient reasons and grounds. T he other appeals filed by the Government in O.S.A.Nos.19/2001 and batch was dismissed on 31-10-

2003. T he members of the Society which is one of respondent No.1 herein filed application No.145 of 2007 raising same plea, however, it was rejected by order dated 14-8-2007 and the same was conferred by the Division Bench in O.S.A.No.58 of 2007 and batch. T his was followed by them unsuccessfully by filing another writ petition in W.P.No.26166 of 2006. T he appellants herein are all claiming that they have valid duly recognized assignment under a registered documents in their favour. T hus, they are the absolute owners and the question of claiming any title or possession by the petitioners does not arise. However, under the guise of the orders of status quo the writ petitioners are making use of the same and creating problems. T hus viewed from any angle the very plane on which the writ petitioners sought to proceed does not make out a n y prima facie sustainable case to show any title or possession in their favour and the same is in serious dispute. T he appellants herein are claiming as assignees in pursuance of the registered document, which enforceable under in comparison the writ petitioners claims based on alleged agreements of sale and orders rejecting the claims in the said suit. T hus, without going into the merits of the either of the claims, it clearly shows that it is not a fit case to warrant even a positive or mandatory direction injunction against respondents in the writ petition or even to order a status quo. T he very fact that the writ petitioners have impleaded all the appellants herein as parties to the writ petition and all are parties in the said suit in C.S.14 of 1958 and the proceedings are stated to be pending itself cast a sufficient cloud to accept the version of the petitioners on its face value to seek such indulgence. In the circumstances, we are of the view that the orders of the learned Single Judge in granting the order of status quo is not sustainable nor the applications as has been filed cannot be entertained. T hat apart, even the interim application as has been filed and framed seeking for a direction in the nature of injunction not to interfere with the possession of the petitioners in a writ petition where they sought to assail the M emo issued by the government giving certain directions under the aforesaid said legislations, the only question that would involve is as to correctness of such powers of the Government to issue such directions and the sustainability thereof rather than going into any aspect of possession of either of the parties. Necessarily the endeavour should be that the parties be directed to approach the appropriate forum where the comprehensive remedies are available under law rather than allowing such disputes to be agitated under Article 226 of the Constitution of India. Even otherwise, prima facie, we are of the view that having regard to the nature of the directions given by the Government in the impugned M emo, which only pertain to the Record of Rights and other revenue entries under the aforesaid legislations, it is now well established that the entries in the revenue records are not conclusive one with regard to title nor any possession as such, and in regard to any disputes arising thereof, necessarily the aggrieved party has to approach the civil Court and establish thereby by appropriate civil proceedings rather than invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. During the course of the arguments, the learned counsel appearing on behalf of the appellants also pointed out that in fact the petitioners along with some others have already approached this Court on its original jurisdiction where the present civil suit is pending and other applications have been rejected as per the orders in applications 145 of 2007 and others in C.S.No.14 of 1958 and the same were dismissed as per the orders dated 14-8- 2007, and therefore it is not open for the writ petitioners to come forth with any such claim either on title or on possession. Be that as it may, we refrain from going into the respective claims as set forth either by the writ petitioners or by the appellants herein, since it is not open for this Court to consider the same, more so, when these appeals are arising out of the interlocutory proceedings and the main writ petitions are still pending consideration. Further, the fact that the comprehensive proceedings in C.S.No.14 of 1958 are already pending on the file of this Court, and the parties have set forth their claims and get it decided. In view of the same, such parallel proceedings by way of Article 226 of the Constitution of India to establish any such right is not sustainable. Another argument submitted on behalf of the appellants is that having regard to the sub-clause 3 of Article 226 of the Constitution of India, since the time granted therein has already been over and having regard to the fact that the stay application is being filed with counter, the interim orders granted would no longer remain. However, we are not going into such aspect except noting the fact that similar such provision can be found under Order 39 of the Code of Civil Procedure where if court does not take the application after granting the ex parte ad-interim order, the same would stand vacated. All these provisions are only made for aiding on procedural side to see that such applications are disposed of at the earliest. No doubt as contemplated thereunder the orders already got expired but the applications filed by the applicants with the counter have not been posted. Now doubt this is to be viewed with concern by the Registry of this Court. T he parties cannot be blamed for not listing the cases. It is needless to point out that as and when such applications are filed seeking for vacating any interim orders granted, irrespective of nature of case, the same necessarily has to be posted immediately soon after it is processed and numbered and there should not be any delay. Having regard to the aforesaid reasons, we are of the view that the orders of the learned Single Judge are not sustainable. Accordingly, the Writ Appeals are allowed and the orders dated 4-4-2008,01-5-2008, 28-12-2008 and 22-7-2008, respectively, made in WPM P.No.9645 of 2008 in WP.No.7334 2008, WPM P.No.13269 2008 WP.No.10093 of 2008, WPM P.No.36638 of 2007 WP.No.27205 of 2007 and WPM P.No.20417 of 2008 in WP.No.15760 of 2008, are set aside. No costs. Since the appellants herein have already filed counter affidavits as stated, we deem it appropriate that the main writ petitions themselves can be disposed of at the earliest. Accordingly, we direct the office to post the writ petitions WP.No.7334 of 2008, WP.No.10093 of 2008, WP.No.27205 of 2007 and WP.No.15760 of 2008, for final hearing on 20-10-2008, subject to part heard, before the regular court hearing the matters. No costs. ___________________ (B.PRAKASH RAO,J) ___________________ (R.KANTHA RAO,J) Date:30th September, 2008 Grk