O.M. Debara vs Government Of A.P.

This writ petition is filed seeking to grant the following relief:

“… to issue a writ, order or direction more particularly one in the nature of a writ of mandamus declaring the action of the 1st respondent in issuing G.O’s., G.O.Ms.No.509, Revenue (ASN.V) Department, dated 14.06.2010 and G.O.Ms.No.510, Revenue (ASN.V) Department, dated 14.06.2010, alienating an extent of Acs.55.00 in Sy.No.31, Neknampura Village, Rajendranagar Mandal, Hyderabad District, and an extent of Ac.100.00 in Sy.Nos.923 to 926/p, 935, 946, 952 and 957 to 961/p, situated at Jawaharnagar Village, Shamirpet Mandal, R.R. District, respectively in favour of the 3rd respondent is arbitrary, illegal, offending Article 14 of the Constitution of India and contrary to the orders passed by this Honble Court in W.P.No.13730 of 2006, dated 08.10.2007, W.P.No.7956 of 2008 & batch, dated 05.01.2010, and to set aside the same and to pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

Heard Mr. Gandra Mohan Rao, learned Senior Counsel representing Mr. Malla Reddy Gadipally, learned counsel for the petitioners, Mr. Godugu Mallesham, learned counsel representing Mr. T. Rajinikanth Reddy, learned Additional Advocate General, Mr. A. Venkatesh, learned Senior Counsel representing Mr. Sheelam Ashok Reddy, learned counsel for respondent No.3.

The brief facts of the case are:

The Government has issued two G.Os., i.e., G.O.Ms.No.509, Revenue (ASN.V) Department, dated 14.06.2010, and G.O.Ms.No.510, Revenue (ASN.V) Department, dated 14.06.2010, alienating an extent of Acs.55.00 of land in Sy.No.31, Neknampura Village, Rajendranagar Mandal, Hyderabad District, and an extent of Acs.100.00 in Sy.Nos.923 to 926/p, 935, 946, 952 and 957 to 961/p, situated at Jawaharnagar Village, Shamirpet Mandal, R.R. District, respectively, in favour of the Andhra Pradesh Secretariat Employees Mutually Aided Cooperative Housing Society Limited (hereinafter referred to as ‘Society’), Hyderabad. Another set of G.Os., i.e., G.O.Ms.Nos.242 to 243 and 244, Revenue (Assignment-I) Department, dated 28.02.2005, were issued by the Government.

3.1 G.O.Ms.No.242, dated 28.02.2005, was issued to create a land bank for allotment to the needy and deserving sections of society. G.O.Ms.No.243, dated 28.02.2005, was issued laying down the pre-conditions for allotment of land for housing to various categories of persons. G.O.Ms.No.244, dated 28.02.2005, was issued laying down the policy guidelines for allotment of land for housing to six categories of persons, who are Government servants.

3.2 In W.P.No.13730 of 2006, challenge was laid to declare G.O.Ms.No.522, Revenue (ASN.V) Department, dated 04.05.2006, as illegal and arbitrary. A Division Bench by order dated 08.10.2007 allowed the writ petition and quashed G.O.Ms.No.522, dated 04.05.2006. The Division Bench held that the orders in the said writ petition would not preclude the Government from making allotment to societies or groups of the identified categories in accordance with the policy contained in G.O.Ms.No.243, dated 28.2.2005. It was left open to identify a category of persons to form a new society and get the same registered or make applications as groups for the purpose of allotment of land in terms of the policy contained in G.O.Ms.No.243, dated 28.2.2005.

3.3 A batch of writ petitions came to be filed before the Hon’ble Court in W.P.Nos.7956, 7997 and 23682 of 2008 seeking a direction to declare G.O.Ms.Nos.419 to 425, dated 25.03.2008, and G.O.Ms.No.551, dated 27.03.2008, as illegal, arbitrary, without jurisdiction, void ab initio and violative of Division Bench Orders in W.P.No.13730 of 2006. The Division Bench by order dated 19.04.2008 passed interim order holding that the directions issued by the Division Bench in W.P.No.13730 of 2006 have not been faithfully carried out by the Government and passed interim order by issuing certain directions. Further the Division Bench by an order dated 05.01.2010 quashed all the G.Os. except G.O.Ms.No.421, dated 25.03.2008. It held that if the respondents were to make fresh allotments, they could do so by issuing fresh G.O. by incorporating necessary condition rendering the persons, who own a house or house site in their own name or in the name of their spouse or children, ineligible for allotment by the respective Societies. It was further held that the respondents should call the details of the members, who satisfy the eligibility criteria for allotment of house sites and the respective Societies shall submit the applications of each of the members personally signed by them along with their sworn affidavits declaring that they do not own a house or house site as stated supra and that these details should be kept in web-site for information of general public.

3.4 The respondents in W.P.Nos.7956 of 2008 and batch carried the matter in appeal to the Hon’ble Apex Court in C.A.Nos.3791-3810 of 2011. The Supreme Court vide order dated 14.05.2010 had directed that the order dated 19.04.2008 passed by the High Court shall continue to be in operation. The Apex Court by order dated 02.05.2017 modified the interim order dated 14.05.2010 granted earlier to the extent that the allottees/societies, who were in possession of the subject land, may develop the land at their own risk and cost and they shall not claim any equities in their favour if ultimately they fail in these appeals. The Civil Appeals are still pending in the Hon’ble Apex Court.

3.5 Learned Senior Counsel appearing on behalf of the petitioner assailed validity of G.Os on following grounds:

1) The said G.Os., are contrary to the order of the Division Bench in W.P.No.13730 of 2006, dated 08.10.2007 and contrary to the judgment of the High Court in W.P.No.7956 of 2008 and batch, dated 05.01.2010.

2) The G.Os., have been issued and alienation of land has been made without referring to the statutory rules i.e., Andhra Pradesh (Telangana Area) Alienation of State Land Revenue Rules, 1975 (for short, the Rules, 1975).

3) The alienation of the said land has been made without application of mind and within the limits of Outer Ring Road (ORR) by relaxing the conditions in G.O.Ms.No.243, dated 28.02.2005, wherein allotment of land within ORR is prohibited.

4) The said G.Os., have been issued relaxing the conditions in G.O.Ms.No.243 dated 28.02.2005 without any justification.

5) Allotted land is valued at more than Rs. 550.00 crores and the said land has been parted for a meagre amount of Rs.2.07 crores which is against public interest causing loss to exchequer and also is in violation of Article 39 (a) and (b) of the Directive Principles of State Policy.

3.6 It is submitted that under G.O.Ms.No.242, dated 28.02.2005, the empowered committee alone is vested with the power to decide allotment of land, apportionment and usage and submit the said proposals to the Government. In the present case, procedure prescribed in Government Orders dated 28.02.2005 has not been followed. It is further submitted that broad guidelines are prescribed in G.O.Ms.No.243, dated 28.02.2005, such as methodology of allotment, categorization of pricing, conditions of allotment and size of plots/fats.

3.7 Our attention has been invited to G.O.Ms.No.244, dated 28.02.2005, and it is submitted that the criteria has been laid down for allotment of land for housing to Government employees by this G.O., such as conditions of allotment and size of plots/flats.

Learned counsel for the petitioners submitted that the guidelines prescribed in G.O.Ms.Nos.242 to 244 have not been followed and the directions issued by Division Bench of this Court in W.P.No.17370 of 2006 have not been adhered to and impugned G.Os., are violative of the directions issued by the Division Bench and the guidelines in G.Os. 242 to 244 dtd. 28.02.2005.

4.1 It is submitted that as per Rule 10 of the Rules, 1975, the Government, if desires to sell or otherwise alienate its lands in Telangana Area, may do so by following a reasonable procedure such as public auction. Relying upon Rule 10 of the Rules 1975, it has been contended that the said alienation should have been by way of public auction. It is further submitted that if there is allotment or alienation of land, the same has to be done by proper application of mind. The G.Os. have been issued without taking into consideration the guidelines prescribed as per G.O.Ms.Nos.242 to 244, dated 28.02.2005. That the said G.Os. have been issued by relaxing guidelines which is against the policy and without incorporating the conditions as directed by the Division Bench.

4.2 Learned counsel for the petitioners submits that the discretion to be exercised by the Government in grant of largesse is in regards to the persons to whom such largesse may be granted, but, its action must be in conformity with a standard or norm which is not arbitrary, irrational or irrelevant. Government cannot act arbitrarily at its sweet will like a private individual. It is further submitted that prime land cannot be given away at a throw away price and it is against the public policy and public interest. It is argued that the Government has acted unreasonably in allotting the said lands to the society. The valuable resources of the State Government are being divested and the Government has fixed the price without taking into consideration the land prices and that land worth Rs.550.00 crores has been allotted for Rs.2.07 crores.

4.3 It is submitted that under Part IV, Directive Principles of State Policy, Article 39 of the Constitution of India imposes an obligation on the State to direct its policy by distributing material resources of the community to sub-serve the common good and the distribution should be done in a fair and equitable manner and therefore, the allotment of the land is contrary to Article 39 of the Constitution of India. It is argued that that the State in an act of largesse cannot act at its pleasure and has to satisfy the test of reasonableness and public interest and actions of the State should be in consonance with principles of equality and public trust and ensure that no action of it is detrimental to public interest, that the land could have been sold by public auction. It is further argued that the allotment is contrary to the law laid and in contravention of G.O.Ms.Nos.242 to 244. Hence, the G.Os. under challenge are liable to be quashed. In support of the aforesaid submissions, learned counsel for the petitioners has placed reliance on the following decisions:-

M/s. Kasturi Lal Laxmi Reddy vs. State of Jammu and Kashmir (AIR 1980 1992) (paragraphs 11 to 16)

Ram and Sam Company vs. State of Haryana (AIR 1985 SC 1147) (paragraph no.12)

Shri Sachidanand Pande vs. State of West Bengal (AIR 1987 SC 1109) (paragraph nos.33 to 39)

M.I. Builders (P) Limited vs. R.S. Sahoo (1999 (6) SCC 464) (paragraphs 31, 32, 57, 58, 59, 69 to 72)

Akhil Bhrtiya Upbhokta Congress v. State of M.P. and others (2011 (5) SCC 29) (paragraphs 48 to 68)

Humanity and another vs. State of West Bengal and Others (2011 (6) SCC 125) (paragraphs 23 to 33)

City Industrial Development Corporation vs. Platinum Entertainment and Others (2015 (1) SCC 558) (paragraphs 36 to 43, 50)

Institute of Law, Chandigarh and Others vs. Neeraj Sharma and others (2015 (1) SCC 720) (paragraphs 25 to 27)

Public Interest Litigation No.383 of 2012, dated 25.07.2014

Road Metal Industry v. Secretary to Government of A.P., Revenue Department and others (2001 (6) ALD 166)

On the other hand, learned counsel appearing on behalf of respondent No.3-Society submitted that certain events which are relevant and necessary for proper appreciation of the issue on hand need to be highlighted. That such appreciation necessarily involves consideration of developments that took place prior to the issuance of the G.Os., under challenge.

5.1 Learned counsel for respondent No.3 highlighted the following events which took place prior to the issuance of G.O.Ms.Nos.242 to 244, dated 28.02.2005.

i) G.O.Ms.No.803, dated 26.10.2002, was issued allotting land admeasuring Acs.59.14 guntas in Survey No.31 of Neknampura Village, Rajendranagar Mandal, Hyderabad, was allotted in favour of the Secretariat Employees for house sites.

ii) Memo No.79955/ASSN.V(2)/2002, dated 11.02.2003, was issued to hand over advance possession of land to the Secretariat Employees for house sites.

iii) By letter No.LCI/1682/2001, dated 08.03.2003, Collector, Ranga Reddy District instructed to hand over advance possession of land to the Society.

iv) That vide letter No.5542/MP.2/Plg/HUDA/04, dated 12.10.2004, Group Housing Scheme layout permission was accorded in L.P.No.55/NP-2/11/2004, dated 12.10.2004, subject to certain conditions.

v) Government of Andhra Pradesh instructed Collector, Ranga Reddy, to resume land to an extent of Acs.100.00 situated at Jawaharnagar Village, Shamirpet Mandal, Ranga Reddy, from out of Acs.2000.00 handed over the Hyderabad Urban Development Authority (hereinafter referred to as HUDA) vide Memo No.79955/ASSN.V(2)/2002-06, dated 09.11.2004.

vi) Land admeasuring Acs.59.14 guntas in Survey No.31 of Neknampur Village was handed over by the revenue authorities to the President Shri M. Narender Rao of the Society vide Panchanama, dated 20.03.2003 and an extent of Acs.100.00 of land in Survey Nos. 923 to 926/p, 935, 946, 952 and 957 to 961/p, of Jawaharnagar Village, Shamirpet Mandal, was handed over to the President of the Society on 19.07.2005 by conducting panchanama.

vii) Respondent No.3/Society was intimated about the development charges, processing charges, other miscellaneous charges, demarcation of plots, fencing, mortgage plots and submission of Encumbrance Certificate vide letter No.1749/MP.2/Plg.H/2007, dated 25.03.2008.

viii) Proceedings were issued on 30.12.2008 by the Director (Commercial), APCPDCL and communicated to the President of the Society informing about the sanction of electricity connection.

5.2 Learned counsel submitted that 850 eligible members were allotted plots in respect of Neknampur and 1600 members were allotted plots in respect of Jawaharnagar site.

A number of houses were constructed and the Society has incurred an expenditure of Rs.6.77 crores for development of essential amenities in respect of Neknampur site and Rs.9.00 crores for the same purpose in respect of Jawaharnagar site. That the members of the Society were all employees of the Secretariat working in various cadres including Clerks of all Grades, Typists, Drivers, Record Assistants, Attenders, Watchmen, Sweepers and Scavengers etc. It is submitted that the events highlighted were prior to issuance of G.O.Ms.Nos. 242 to 244 and the guidelines prescribed therein cannot be made applicable.

Our attention has been invited to the Division Bench judgment rendered in W.P.No.13730 of 2006 and contended that the question which fell for consideration was, whether the policy of the Government to provide shelter to the needy people can be stretched for allotting land to the haves of the Society in their individual capacity in relaxation of the policy guidelines contained in G.O.Ms.Nos.242, 243 and 244, dated 28.02.2005, that whether such policy can be extended to the individual capacity of IAS Officers. Hence, the contention of learned counsel for the petitioners is misconceived.

Referring to a portion of the order of the Division Bench order at page No.7, it is contended that the Government of Andhra Pradesh did not have any fixed policy or mechanism till the issuance of G.O.Ms.Nos.242, 243 and 244, to meet the requirement of other deserving sections of the society for alienation of land to such sections.

7.1 It is submitted that the G.O.Ms.Nos.242 to 244 came into being in the year 2005, by which, guidelines were issued and that the allotment of the said lands/sites in favour of respondent no.3-Society were much prior to 2005. That the Division Bench quashed allotment of land to individuals who are not members of the society/groups and who may have received the benefit of concessional allotment from the Government earlier or as member of any society or group to which concessional allotment was made. That the Division Bench had made it clear that the Government was free to allot land to the societies/groups of identified categories in accordance with the policy contained in G.O.Ms.No.243, dated 28.02.2005. Learned counsel submitted that the allotment is neither contrary to the judgment in W.P.No.13730 of 2006 nor to the policy and that the contentions of learned counsel for the petitioners are untenable and do not deserve consideration.

Our attention has been invited to the judgment of Division Bench of this Court in W.P.No.7956 of 2008 and batch, dated 05.01.2010. It is submitted that the division bench in these matters considered the alienation of lands situated within the Greater Hyderabad Municipal Corporation (hereinafter referred to as GHMC) to various societies comprising as their members, persons who are members of both the Houses of A.P. State Legislature, members of both the Houses of Parliament from A.P., Officers of All India Services i.e., IAS, IPS and IRS, who are the non-natives and working in the State of Andhra Pradesh and those belonging to other States Cadre with A.P. nativity working/worked on deputation in the State of A.P., Journalists and the High Court Judges of A.P. and that the contentions of petitioners counsel that the division bench orders have been ignored is totally baseless as the issue which fell for consideration different.

8.1 It is submitted that persons/individuals who have already received benefits either individually or as Members of a Society and persons who own properties either in their names or in the name of their spouse or their children were made ineligible. It is submitted that the Division Bench in W.P.No.7956 of 2008 and batch held that G.Os. that did not make those persons ineligible as stated supra cannot be sustained in law. Hence, they were bound to be quashed to that extent. It is submitted that the Division Bench suggested the incorporation of necessary condition that the persons/individuals who own a house or house site in their own names or in the name of their spouse or their children should be made ineligible for allotment of land/site by the respective societies and certain other criteria was suggested. It is submitted that the Government in its wisdom allotted land in favour of Andhra Pradesh Secretariat employees for house sites.

Learned Special Government Pleader representing the respondent-State contended that the alienation/allotment of land is contrary to the judgments rendered by the Division Bench in W.P.No.13730 of 2006 and W.P.No.7956 of 2008 and batch. The conditions enumerated in G.O.Ms.Nos.242, 243 and 244, dated 28.02.2005, have to be followed if allotments are to be made. Our attention has been invited to the conditions of allotment in G.O.Ms.No.243, dated 28.02.2005, to buttress the contention that the guidelines of the Government Order are in consonance with the directions of the orders of the Division Bench.

In reply to submissions made by learned counsel for the respondent No.3-Society, counsel for petitioners contended that an employee who does not have a house in Hyderabad or Ranga Reddy is eligible for a house site, but whereas it should be construed as anywhere in Andhra Pradesh as per the judgment of the Division Bench. That Clause 41 read with Clause 3 (for obtaining and retaining membership) of byelaws of society lays down the criteria of eligibility and ineligibility.

Our attention is invited to paragraph no.3 of the counter affidavit filed by the respondent No.3-society that except IAS Officers, all other employees working in the Secretariat and the Andhra Pradesh Assembly are members of the society. It is submitted that the subject matter in W.P.No.7956 of 2008 and batch is with regard to alienation of lands situated within GHMC limits to various societies and the said allotment is within GHMC limits. That the Division Bench suggested to incorporate that if any member of the society gives a false declaration in the affidavit, wherein declaration has been sought for allotment of a house site, such policy declaration would make the employee liable for cancellation from the membership and would be liable for civil and criminal consequences. That such a condition has not been incorporated in spite of the directions of the Division Bench. It is submitted that as per G.O.Ms.No.416, in Municipal Corporation(s), Government may alienate lands preferably for constructions of flats, but, however, if employees desire land for individual plots can be allotted. It is strenuously contended that the Government has allotted/alienated the land by ignoring the guidelines issued in G.O.Ms.Nos.242 to 244. That the directions issued by the Division Bench have not been incorporated and the issuance of the G.Os. are contrary to guidelines.

Heard learned counsels, perused the entire record, Government Orders issued on different dates.

Allotment of one of the parcels of land is vide G.O.Ms.No.803, dated 26.10.2002, possession was delivered and panchanamas were conducted much prior to issuance of G.O.Ms.Nos.242, 243 and 244, dated 28.02.2005. On a perusal of G.O.Ms.No.803, it is clear that the Government issued orders allotting the land in favour of employees, who formed the 3rd respondent-Society and this fact is borne by record. That by letter dated 06.01.2005, the second parcel of land admeasuring Acs.100.00 was resumed on the instructions of Collector, Ranga Reddy, to Mandal Revenue Officer, Shamirpet Mandal from HUDA and the same was handed over to the 3rd respondent-society. It is a fact borne on record that both these parcels of land were allotted/alienated prior to the issuance of G.O.Ms.Nos.242 to 244, which were issued subsequently on 28.02.2005, where policy guidelines are prescribed. It is a fact that guidelines are issued subsequent to the allotment. The fact that the Division Bench in its order has recorded a finding that the Government of Andhra Pradesh did not have any fixed policy or mechanism till the issuance of G.O.Ms.Nos.242, 243 and 244, to meet the requirement of other deserving sections of the society for alienation of land to such sections is ample proof that the policy guidelines framed are subsequent and the contentions raised by the petitioners are based on sandy foundations. The directions to incorporate condition(s) that persons/employees who own a house or house site in their name or in the name of their spouse or their children should be made ineligible is already embedded in the byelaws of society and we have perused it. The Division Bench has not precluded the Government from making allotment to Societies is also taken note of.

We do not find any hesitation in holding that G.O.Ms.Nos.509 and 510, dated 14.06.2010, are only a reiteration of the allotment of the parcels of the land, made much prior to issuance of G.O.Ms.Nos.242, 243 and 244. We do not find any infirmity in the G.Os., under challenge in this Public Interest Litigation. For the aforesaid reasons, the challenge to the impugned G.Os., on the ground that the same are violative of the guidelines and contrary to the orders of the Division Bench is misconceived.

It is trite law that the doctrine of delay and laches applies to the public interest litigation as well. The Hon’ble Supreme Court in Bombay Dyeing and Manufacturing Company Limited v. Bombay Environmental Action Group (2006) 3 SCC 434, in paragraph 341 has held as under:

“341. Delay and laches on the part of the writ petitioners indisputably have a role to play in the matter of grant of reliefs in a writ petition. This Court in a large number of decisions has categorically laid down that where by reason of delay and/or laches on the part of the writ petitioners the parties altered their positions and/or third-party interests have been created, public interest litigations may be summarily dismissed. Delay although may not be the sole ground for dismissing a public interest litigation in some cases and, thus, each case must be considered having regard to the facts and circumstances obtaining therein, the underlying equitable principles cannot be ignored. As regards applicability of the said principles, public interest litigations are no exceptions. We have heretobefore noticed the scope and object of public interest litigation. Delay of such a nature in some cases is considered to be of vital importance. (See Chairman & MD, BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567].”

In the instant case, the allotments have been made in the year 2002 whereas the public interest litigation has been filed challenging the allotment in the year 2010. Thus, the challenge to the order of allotment suffers from delay and laches. The delay and laches in filing the petition has not been explained by the petitioners. Therefore, the petition suffers from delay and laches and the petitioner is not entitled to any relief in this petition on this ground that the writ petition suffers from delay and laches. For yet another reason, no interference is called for as the Society has made allotment of plots in favour of its members and many members of the Society have raised constructions on the plots allotted to them. Therefore, at this point of time, no interference in this petition is called for.

For the aforementioned reasons, the petition is liable to be dismissed and the same is dismissed. There shall be no order as to costs.

Miscellaneous applications pending, if any, shall stand closed.