Disposed

Lakshmi Gonela v. The National Commisioner for scheduled Castes

Andhra Pradesh HC5 Oct 2023WP/2018/2018

Case brief

AI extract

What is this about?

This court disposed of four writ petitions challenging the proceedings of the National Commission for Scheduled Castes regarding land dispute involving ex-serviceman quota properties. The court held that the Commission, under Article 338, lacks jurisdiction to adjudicate property rights by binding orders and its report herein was merely recommendatory. Consequently, the court did not set aside the

What did the court decide?

The writ petitions were disposed of. The parties are directed to approach the appropriate authority/Forum for grievance redressal.

Lakshmi Gonela Vs The National Commisioner for… — Landlord and Tenant | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

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WRIT PETITION NOs.1905, 2018, 8357 & 8419 of 2018

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COMMON ORDER:

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Since these entire writ petitions were filed to declare the proceedings in F.No.14/127/AP/ 2014/ESDW (undated) of the 1^st respondent as illegal and contrary to the provisions of Article 338 of the Constitution of India, they are being heard together and disposed of by this common order.

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The case of the petitioners in all the writ petitions, in

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brief is that, they are vendors or vendors vendors of different extents of the land in Survey No.382 of Madhurawada village, Visakhapatnam Rural Mandal, Visakhapatnam District, under respective sale deeds from Nalla Appalaswamy, an Exserviceman. The said Nalla Appalaswamy was assigned the said land in an extent of Ac.4-25 cents under Ex-serviceman quota vide D-Form patta dated 24.06.1972. Though the land assigned to him is situated in Survey No.382, in the D-form patta it was incorrectly shown as if the land is situated in Survey No.374/2. As such, a corrected patta was issued with correct survey number vide corrected patta dated 08.04.1988 for the same subject property covered under earlier patta dated 24.06.1972. In fact

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the said Nalla Appala Swamy had been in occupation of the land covered under the pattas even prior to 1972 and had been cultivating the same as Shivai Jamadar. When an attempt was made to dispossess him from the said land, the said Nalla Appala Swamy had filed Writ Petition No.18539 of 1987 and the District Collector, Visakhapatnam, in the counter affidavit had admitted that the said individual had been in occupation of the land in Survey No.382 and the incorrectly shown survey number i.e. 374/2 was corrected as Survey No.382 and corrected patta was granted to the individual by correcting the mistake. As per Board Standing Order No.15, Para-11, Sub Para (2) clause (v) subClause (a), the lands assigned should not be sold or otherwise alienated for a period of ten (10) years. The Government vide G.O.Ms.No.1117, dated 11.11.1983 had made the situation clear that Ex-Servicemen are free to sell their assigned lands after a period of 10 years. The 10 year period in relation to the land assigned to Nalla Appala Swamy had expired on 24.06.1982 and therefrom the land had lost its character of non-alienability and as such there was no impediment for him to sell the same. Taking note of the same, the District Collector, Visakhapatnam had issued proceedings vide Rc.No.426/2006/E1, dated

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24.05.2010 ordering de-notification of an extent of Ac.0-43 ¾ cts. from the purview of notification issued under Section 22A of the Registration Act, 1908.

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It is the further case of the petitioners that, the 5^th respondent, who is grandson of Nalla Appala Swamy, appears to have approached the 1^st respondent-National Commission for Schedules Castes with a complaint and thereon the 1^st respondent, without issuing any notices and without affording any opportunity to the petitioners, had passed the proceedings impugned in these writ petitions affecting their property rights. The 1^st respondent has virtually adjudicated upon the subject over which it has no jurisdiction and decided certain issues, which

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are not within its purview. The impugned proceedings virtually contain directions to the authorities and on the strength thereof, the revenue and police authorities, now want to dispossess the petitioners from the subject land. In fact, the authorities have visited the subject land and informed that the possession of the petitioners’ land would be taken on the basis of the impugned proceedings. Hence, these writ petitions have been filed.

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The 5^th respondent filed counter affidavit denying the

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averments of the writ affidavits, inter alia contending that, the

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then Mandal Revenue Officer, on verification, having noticed that the land assigned to grandfather of this respondent viz., N.Appala Swamy, an ex-serviceman, in Survey No.374/2 was vacant and the same is classified as MC, had cancelled the earlier patta issued in the year 1972 and issued a revised patta in the year 1988 for an extent of Ac.4-50 cents in Sy.No.382 and grandfather’s name of this respondent was recorded in Revenue Records with patta No.830 of Maduravada village. The said N. Appalaswamy in a sound and disposing state of mind executed a Registered Will dated 15.12.1994 bequeathing the land assigned to him to the 5^th respondent. As per G.O.Ms.No.1117 Revenue (Assignment) dated 11.11.1993, the ex-serviceman would get absolute salable interest over the land assigned under quota only after expiry of 10 years from the date of grant of patta. Thus, the sales which took place in the year 1996 is illegal and contrary to the guidelines issued by the Government in the G.O. referred to above. Despite sales, the property is in possession of the 5^th respondent. When there was threat of dispossession, the 5^th respondent and his family members filed W.P.No.1479 of 2012 and the said Writ Petition was disposed of

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by this Court with a direction to the respondents therein not to

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dispossess this respondent from the land in question without following the due process of law. As some third parties claiming to be purchasers of the subject land from this respondent’s grandfather threatened with dire consequences, this respondent approached the A.P.State S.C.Commission by way of representation and as there was no response, this respondent approached the National S.C.Commission for justice for cancelling the sale deeds over the subject land. Pursuantly, the National S.C.Commission called for report from the concerned District Collector and thereafter on detailed adjudication of the issue involved in the subject matter gave necessary directions to the authorities. The sales claimed by the petitioners are null and void and the period of ten (10) years referred in the G.O.Ms.No.1117 starts from 1988 when revised patta had been granted but not from the year 1972. The 1^st respondent National Commission while exercising its constitutional powers issued a report safeguarding this respondent’s interest over the landed property. There is no violation of any of the Articles as alleged by the writ petitions. The writ petitions are devoid of merits and hence prayed to dismiss the writ petitions.

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Heard Sri P. Roy Reddy, learned counsel for the petitioners in all the writ petitions, Sri Pasala Ponna Rao, learned Standing Counsel for the 1^st respondent-National Commission for Scheduled Castes, learned Assistant Government Pleader for Home for 2^nd respondent, learned Assistant Governemnt Pleder for Revenue for respondent Nos.3 & 4 and Sri K. Koutilya, learned counsel for the unofficial 5^th respondent.

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Sri P.Roy Reddy, learned counsel for the petitioners, in elaboration would submit that, eversince 1970 the vendor of the petitioners had been in possession of the property and in the year 1972 the subject land was assigned to him under ex-serviceman quota. As D-form Patta was issued mentioning a wrong survey number, the authorities have issued corrected D-form patta in the year 1988 mentioning the correct survey number for the self same subject property. Thus, the ten (10) year period referred in G.O.Ms.No.1117 starts ticking from 1972 itself but not from 1988 as alleged by the 5^th respondent. The 1^st respondent- National Commission for Scheduled Castes went beyond the powers and jurisdiction conferred upon it under Article 338 of the Constitution and had decided right and title over the subject property in favour of the unofficial respondent herein and further issued

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binding directions to the authorities. Thus, the impugned proceedings of the 1^st respondent are illegal, arbitrary besides being violatiive of Articles 14,21 and 300A of the Constitution of India. Hence, prayed to allow the writ petitions.

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The learned counsel for the petitioner relied on Collector, Bilaspur vs. Ajit P.K.Jogi and others¹ , All India Indian Overseas Bank SC and ST Employees’ Welfare Association and others vs. Union of India and others² , and Municipal corporation oif Delhi v. Lal Chand and others³ .

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Per contra, Sri Pasala Ponna Rao, the learned Standing counsel for the 1^st respondent Commission and Sri K.Koutilya, learned counsel for the unofficial respondent, would contend that the 1^st respondent Commission has been constituted to protect and safeguard the persons belonging to Scheduled Castes by ensuring that there is affirmative action by way of reservation as

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well as empowerment, redressal of grievances and no discrimination. Thus, Article 338(5) empowers the Commission to inquire into the specific complaints with respect to deprivation

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(2011) 10 SCC 357

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2.(1996) 6 SCC 606

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2013 SCC OnLine Del 3702

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of rights of Scheduled Castes. The 1^st respondent Commission on detailed adjudication of the issue involved had given necessary directions to the authorities. Therefore, no valid grounds are either raised or urged in these writ petitions warranting interference of this Court.

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The learned Standing Counsel further added that a perusal of the impugned proceedings clearly shows that the directions given to the authorities are only recommendatory in nature. Hence, prayed to dismiss the writ petitions.

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In Collector, Bilaspur vs. Ajit P.K.Jogi and others

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(supra 1), the Hon’ble Supreme Court held thus:

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“9. The High Court also held that the Commission had violated the principles of natural justice as it had collected material behind the back of the first respondent and recorded adverse findings without disclosing the material collected by it to the first respondent and without giving an opportunity to the first respondent, to have his say on such material. The Court also passed strong observations against the sixth respondent stating that the entire exercise was politically motivated. Consequently, it allowed the writ petition, quashed the entire proceedings of the Commission as also the findings in the order dated 16-10-2001 as being void and inoperative.

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15. Dealing with the powers of a similar (State) Commission for Women, this Court in Bhabani Prasad Jena v. Orissa State Commission for Women [(2010) 8 SCC 633 : (2010) 3 SCC (Cri) 1053 : (2010) 3 SCC (Civ) 501] held as under : (SCC p. 639, para 11)

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“11. Mr Ranjan Mukherjee, learned counsel for Respondent 2 submitted that once a power has been given to the State

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Commission to receive complaints including the matter concerning deprivation of women of their rights, it is implied that the State Commission is authorised to decide these complaints. We are afraid, no such implied power can be read into Section 10(1)(d) as suggested by the learned counsel. The provision contained in Section 10(1)(d) is expressly clear that the State Commission may receive complaints in relation to the matters specified therein and on receipt of such complaints take up the matter with the authorities concerned for appropriate remedial measures. The 1993 Act has not entrusted the State Commission with the power to take up the role of a court or an adjudicatory tribunal and determine the rights of the parties. The State Commission is not a tribunal discharging the functions of a judicial character or a court.”

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17. It is evident from Article 338 as it originally stood, that the Commission was constituted to protect and safeguard the persons belonging to Scheduled Castes and Scheduled Tribes by ensuring : (i) anti-discrimination, (ii) affirmative action by way of reservation and empowerment, and (iii) redressal of grievances. The duties under clause 5(b) of Article 338 did not extend to either issue of caste/tribe certificate or to revoke or cancel a caste/tribe certificate or to decide upon the validity of the caste certificate. Having regard to sub-clause (b) of clause (5) of Article 338, the Commission could no doubt entertain and enquire into any specific complaint about deprivation of any rights and safeguards of Scheduled Tribes. When such a complaint was received, the Commission could enquire into such complaint and give a report to the Central Government or the State Government requiring effective implementation of the safeguards and measures for the protection and welfare and socio-economic development of the Scheduled Tribes. This power to enquire into “deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes” did not include the power to enquire into and decide the caste/tribe status of any particular individual. In fact, as there was no effective mechanism to verify the caste/tribe certificates issued to individuals, this Court in Madhuri Patil v. Commr., Tribal Development [(1994) 6 SCC 241 : 1994 SCC (L&S) 1349 : (1994) 28 ATC 259] directed constitution of scrutiny committees.”

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Perused the material available on record.

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In All India Indian Overseas Bank SC and ST Employees' Welfare Association Vs. Union of India (supra

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2), it has been held that procedural powers of civil court given to the Commission by Article 338(8) of Constitution of India are for the limited purpose of investigating any matter/complaint. The powers of civil court of granting injunctions, temporary or permanent, neither inhere in the Commission nor can such a power be inferred or derived from a reading of Clause (8) of Article 338 of the Constitution. The relevant portion of the Supreme Court judgment in All India Indian Overseas Bank SC and ST Employees' Welfare Association reads as under:-

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"10. Interestingly, here, in clause (8) of Article 338, the words used are "the Commission shall have all the powers of the Civil Court trying a suit". But the words "all the powers of a Civil Court" have to be exercised "while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5". All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution."

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In the said decision, the Commission issued a direction

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to a bank stopping a promotion process pending further investigation and final verdict by the Commission. The Apex Court, however, held that the Commission having not been

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specifically granted any power to issue interim injunctions, a power vesting in a safeguard, had no authority to issue an order of this nature.

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From the above, It is evident that the Commission,

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while acting under Article 338(5) of the Constitution, can only make recommendations and it cannot issue any direction to the Government or any other person or Authority.

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In Municipal Corporation of Delhi (supra 3) High

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Court of Delhi held thus:

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“10. In my view, even an inquiry in terms of sub-clause (b) of clause (5) can be initiated by the Commission only where the complaint relates to a specific incident of depriving a person of the rights conferred upon and safeguards provided for the persons, who as a class belong to Scheduled Castes. It is only such deprivation and not deprivation of any civil right of a person belonging to a Scheduled Castes which can be subject matter of such an inquiry…..”

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In view of the above observations the Commission can

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initiate enquiry only where the complaint relates to a specific incident of depriving a person of the rights conferred upon and safeguards provided for the persons, who as a class belong to Scheduled Castes. No doubt, the 5^th respondent is a person belonging to Scheduled Caste community. The subject matter of the enquiry relates to the property assigned by the Government

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to an ex-serviceman and thus the scope of enquiry by no stretch of imagination can be said to be an incident of depriving a person of the rights conferred upon and safeguards provided for the

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persons, who as a class belong to Scheduled Castes.

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In light of the above observations arrived at regarding the authority and jurisdiction conferred upon the Commission by the Constitution, it is relevant here to extract the relevant observations made in the enquiry report, which reads as thus:

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“…It was also observed that as the date of fresh patta is of the year 1988, the statutory period of 10 years is to be counted for acquiring absolute saleable interest on the land as per G.O.No.1117 Revenue (Assgn.I) Dept., Dt. 11.11.1993 and under this G.O. any kind of transfer of land to third parties amounts to be null and void. The sale of land in the year 1994 by Appalaswamy was rejected as the stipulated time of 10 years was not completed. It is further observed that the petitioner and his family members, on the basis of will registered by his grandfather in the year Dec.1994, is entitled to pattadar passbook and title deed in Survey No.382 of Madhurawada revenue village as under Rule 26 of A.P.Rights in Land & Pattadar Passbook Rules, 1989. The Commission also observed that since the petitioner is a SC person and any illegal occupation by third party on the land is in contravention with the order of the Hon’ble High Court and also tantamount to be an offence under the IPC/Rules.

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The Commission therefore, recommends that the District Authority and State Government of Andhra Pradesh should respect the order of the Hon’ble High Court and reconsider the whole issue sympathetically as the petitioner is a SC person and he & his family members depend for livelihood on this land only. The Commission also recommends that District Authority and State Government may accordingly reconsider & process for issuing the pattadar pass book and title deed in favour of petitioner as per Rule 26 of A.P.Rights in Land & Pattadar Pass

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Book Rules, 1989 in respect of the entire land assigned to his grandfather in Survey No.382 of Madhurawada Revenue Village so that justice to the SC people could be meted out and he may not be deprived of his legitimate rights as per Hon’ble High Court orders. The Commissioner also recommends that any forceful & illegal occupation by the third parties on the said land may be prohibited as per law. The revenue people & police of the district and State may also not disturb the peaceful possession of the petitioner without following the due process of law.

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The above recommendation may be sent to District Collector, Visakhapatnam, Principal Secretary (Revenue) Government of Andhra Pradesh and Commissioner of Police, Visakhapatnam for necessary action. Action Taken Report may be called within one month’s time…”

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A reading of the above makes it clear that the Commission had only made recommendations and they cannot be equated with decrees/orders passed by Civil Courts which are binding on the parties and can be enforced and executed. It cannot be said that the report of the said Commission is alternative to the hierarchical judicial system envisaged under the Constitution of India.

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Therefore, there is no need or necessity found by this Court to set aside the proceedings impugned in these writ petitions, since the said proceedings did contain only recommendations but not either adjudication of the issue or directions to the Government or any person or authority.

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Accordingly, the Writ Petitions are disposed of. The parties are at liberty to get their grievance redressed by approaching the appropriate authority/Forum. In such eventuality, the authority/ Forum shall redress their grievance, strictly in accordance with law and Rules in vogue, uninfluenced by the observations made by the Commission. There shall be no

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order as to costs.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed. Interim orders, if any, shall stand vacated.

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_________________________ JUSTICE RAVI CHEEMALAPATI 5^th October, 2023 RR

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HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

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W.P.Nos. 1905, 2018, 8357 & 8419 of 2018

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