Common Judgment:
Writ Appeal Nos.1159 to 1166 of 2009 are filed by the State of Andhra Pradesh (the ‘State’); Writ Appeal Nos.1306 to 1313 of 2009 are by the Hyderabad Metropolitan Development Authority (HMDA) and W.P.No.29063 of 2009 is by five individuals. The eight appeals each filed by the State and the HMDA are against the common judgment dated 02-06-2009 in W.P.Nos.3421 of 2008, 12928 of 2008, 3750 of 2009, 22619 of 2007, 7747 of 2008, 10084 of 2006, 8761 of 2008 and 6425 of 2009; and the writ petition is by five individuals challenging memo No.1640/J.A1/03-09, Revenue Department, dated 21-05-2005 (the ‘impugned memo’), passed by the Principal Secretary (Revenue) of the State. It is this memo which was set aside by the learned single Judge, against which the sixteen (16) appeals are preferred.
Several individuals filed eight writ petitions challenging the validity of the memo dated 21-05-2005 and in two of the writ petitions (W.P.Nos.22619 of 2007 and 7747 of 2008), the order of the State in G.O.Ms.No.1084, dated 06-06-2005 (issued in exercise of the powers under Section 22-A of the Registration Act, 1908) was additionally challenged. Details of the reliefs sought in the several writ petitions are set out hereunder.
By the common judgment, dated 02-06-2009, the learned single Judge invalidated the memo dated 02-05-2005 for violation of principles of natural justice and directed the State to pass fresh orders after issuing notice to the writ petitioners enabling them petitioners to urge all the grounds before the State. The order in G.O.Ms.No.1084, dated 06-06-2005 was upheld but with the observation that as and when rights of the petitioners in respect of the property in question are determined in their favour they may pursue remedies in this behalf. It was clarified that the judgment shall not be treated as a pronouncement or adjudication of any dispute or question involved in the matter and the legal representatives of Late Nawab Nusrat Jung Bahadur-I or their authorized agent are at liberty to pursue the matter with the Government; and that that disputes, if any, among them (the legal representatives) could be agitated before a competent forum.
We have heard the learned Attorney-General for India instructed by Sri M. Surender Rao, the learned standing counsel for the appellant – HMDA; the learned Advocate-General for the appellant – State; Sri S. Ashok Anand Kumar, learned counsel for the petitioner in W.P.No.29063 of 2009; Sri K.V. Satyanarayana, Sri V.L.N.G.K. Murthy appearing for Sri I.V.S. Rao; Sri Sunil Ganu for Sri V. Ramachander Goud, for impleading petitioners in the several appeals (who claim to be purchasers from the legal heirs of late Nusrat Jung – I through the GPA Sri J.H. Krishna Murthy and the legal heirs of Sri J.H. Krishna Murthy); Sri C.B. Rammohan Reddy, Sri R.K.J. Bhatia, Sri S.M. Shujaat Hussain, Mohd. Vasi Ahmad, learned counsel for the non-official respondents; and Sri C. Damodar Reddy, learned standing counsel for the GHMC.
Before proceeding to adjudicate all the appeals and the writ petition we dispose of certain interlocutory applications.
W.A.M.P.Nos.2420, 2421, 2422, 2423, 2424, 2425, 2426, 2427, 2736, 2737, 2738, 2739, 2740, 2741, 2742 and 2743 of 2009 in W.A.Nos.1159, 1160, 1161, 1162, 1163, 1164, 1165, 1166, 1306, 1307, 1308, 1309, 1310, 1311, 1312 and 1313 of 2009, respectively.
The above applications are by the writ appellants seeking stay or suspension of the common judgment under appeal. These applications stand disposed of in terms of this common judgment.
W.A.M.P.No.1681 and 1682 of 2010 in W.A.No.1161 of 2009 and W.A.M.P.No.1689 of 2010 in W.A.No.1162 of 2009.
The above applications seeking expeditious hearing of the appeals stand disposed of in view of the judgment herein.
W.P.M.P.Nos.37692 of 2009 and 6593 of 2011 in W.P.No.29063 of 2009.
These are applications for certain interlocutory orders in the writ petition. They stand disposed of in view of the judgment herein.
WAMP No.1340/10 IN WA No. 1159/09; WAMP No. 1335/10 IN WA No.1160/09; WAMP No. 1341/10 IN WA No. 1161/09; WAMP No. 1342/10 IN WA No. 1162/09; WAMP No. 1343/10 IN WA No. 1163/09; WAMP No. 1323/10 IN WA No. 1164/09; WAMP No. 1324/10 IN WA No. 1165/09; WAMP No. 1344/10 IN WA No.1166/09; WAMP No. 1321/10 IN WA No. 1306/09; WAMP No. 1336/10 IN WA No.1307/09; WAMP No. 1337/10 IN WA No. 1308/09; WAMP No. 1319/10 IN WA No. 1309/09; WAMP No. 1320/10 IN WA No. 1310/09; WAMP No. 1322/10 IN WA No. 1311/09; WAMP No. 1339/10 IN WA No. 1312/09 AND WAMP No. 1338/10 IN WA No. 1313/09.
The above sixteen (16) applications are filed in the sixteen (16) appeals by twelve (12) petitioners (common to all the applications) seeking to implead themselves as respondents in the respective appeals.
The petitioners claim to be owners and in possession of specified extents of land covered by survey Nos.239 and 240 of Kokapet Village. Some of the petitioners claim to have purchased property under registered sale deeds executed by one Mr. J.H. Krishna Murthy. The other petitioners claim to be heirs of J.H. Krishna Murthy who purchased some of the lands. They claim to have inherited the properties on his demise. The petitioners also claim to be entitled to a total extent of Acs.260.00gts in survey Nos.239 and 240 of Kokapet Village. Sri J.H. Krishna Murthy is the first of the five defendants in O.S.No.512 of 1973 which was decreed by the judgment dated 30-06-1976 of the IV Addl. Judge, C.C.C., Hyderabad, in favour of the plaintiffs – Feroz Khan and Sri Hari and an appeal filed thereagainst in C.C.C.A.No.142 of 1976 was dismissed by this Court vide judgment dated 11-12-1985 and the decree and judgment in O.S.No.512 of 1973 as confirmed by this Court, has become final, no appeal having been preferred thereagainst.
In para-8 of the affidavits accompanying each of these applications, the petitioners assert they filed O.S.No.280 of 2009 on the file of the Principal District Judge, R.R. District, challenging the (impugned) memo dated 21-05-2005; and in view of the said memo having been set aside by this Court (by the learned single Judge qua the common judgment against which the other appeals herein are filed), the petitioners withdrew the suit. The order dated 21-06-2010 in O.S.No.280 of 2009 by the learned Principal District Judge, R.R. District (which has also been filed) reveals that O.S.No.280 of 2009 has been withdrawn simplicitor without granting leave to pursue further or alternative remedies against the grievances presented and for the reliefs sought in the suit. A copy of the plaint in O.S.No.280 of 2009 is also filed (in these applications). The relief claimed in the suit is for a declaration of invalidity of the impugned memo and consequently to restrain the defendants from disturbing/interfering with their title, possession and enjoyment of their lands in survey Nos.239 and 240 of Kokapet Village.
The counsels for the respondents, official and non-official have strenuously contended that the several impleading applications are not maintainable in view of the bar under Order XXIII Rule 4 CPC. Reliance is placed on behalf of the respondents on the judgment of the Supreme Court in Sarguja Transport Services v. State Transport Appellate Tribunal, Gwalior (AIR 1987 SC 88). Mr. Sunil Ganu, the learned counsel representing Mr. V. Ramachandra Goud, learned counsel for the petitioners herein however relies on the judgment in Kandapazha Nadar and others v. Chitraganiammal and others (AIR 2007 SC 1575)to assert that withdrawal of O.S.No.280 of 2009 by the petitioners herein even without liberty to file a fresh suit, does not amount to any adjudication; the order (dated 21-06-2010 of the Trial Court) allowing withdrawal of the suit would not constitute a decree; and would not disentitle the petitioners from pressing their claims in O.S.No.280 of 2009 as a defense to the reliefs sought in the writ petitions (which are the subject matter of the present appeals).
In the view we are taking in the lis before us we do not consider it necessary to adjudicate upon the issue whether the petitioners herein are entitled to any reliefs in respect of any claims qua the schedule property. We allow these applications. The petitioners herein shall be impleaded as respondents in the several appeals. The reliefs these petitioners seek in respect of the property in question would abide by the judgment in the appeals.
Reliefs sought in the Writ Petitions:
W.P.Nos. 3421, 8761 and 12938 of 2008; 3750 and 6425 of 2009 are filed by 22, 9, 117 and 20 petitioners, respectively, seeking the same reliefs viz., invalidity of the impugned Memo and a consequent direction to the respondents to implement Muntakhab No. 57/1955 dt. 7.5.1955 (the Muntakhab) by mutating names of the petitioners in the revenue records and return custody of the property.
W.P.No. 10084/06 is by one KSB Ali, (pleaded to be in representative capacity of 203 legal heirs of Nusrath) for a direction to the respondents to survey, implement and handover physical possession after fixing boundaries of open land admeasuring Ac.719 as per the MRO’s report, out of a total extent of Acs.1635.35 gts, as per Muntakhab No.57/1955 and for a direction to the respondents to determine and pay compensation for the remaining land “usurped” by the Government, whether allotted to third parties or retained by itself; or alternatively to deliver land of equivalent and adequate value; to declare the impugned Memo and G.O.Ms.No. 8033 Revenue Department, dated 6.6.2005 as invalid.
W.P.No.22619/07 is by an individual (Moizuddin Mahamood) for a declaration that the action of respondents 1 to 7 in holding public auction for sale of Ac.1.00 land which is part of the Muntakhab of Kokapet village consequent to the impugned Memo and G.O.Ms.No. 1084 Revenue Department dt 6.6.2005 as illegal and violative of Art. 300-A of the Constitution; for a direction to the respondents to survey, demarcate and hand over physical possession of Ac.7.19 gts, out of Ac.1635.34 gts, land in Kokapet village by implementing the order of the Nazim Atiyat Court dated 15.2.1954 and the Muntakhab which was confirmed in WP No. 227 of 1962, dt 1.4.1963.
W.P.No. 7747/08 is again by an individual (Ghouse Mohiuddin Siddiqui) seeking invalidity of the public auction and sale of Ac.100.00 land which is part of Kokapet village, consequent on the impugned Memo dt 21.5.2005 and G.O.Ms.No. 1084 dt 6.6.2005; and for a direction to the respondents to survey, demarcate and hand over physical possession of the land to the heirs of the petitioner from out of the land admeasuring Ac.719 from out of Ac.1635.34 gts, by implementing the order of Nazim Atiyat Court dt 15.2.1954 and the Muntakhab.
The pleadings in brief, in WP No.3421/08 are noticed as illustrative of the generic pleadings in the several writ petitions.
W.P.No. 3421 of 2008:
The affidavit is filed by the 1st petitioner -- Malik Sultana pleading:
A) The predecessors in interest of late Nawab Nusrat Jung Bahadur-I (Nusrat Jung-I) purchased Ac.1635.34 gts in Kotham Kunta also known as Asadnagar and later as Kokapet village by a registered sale deed in 1852. He died issueless in 1895 leaving behind his widow Smt. Rahimunnisa Begum, who died on 10.10.1916. The widow was in possession of the property since the demise of her husband;
B) Nusrat Jung-I had two cousins – Nawab Gulam Hussain and Nawab Mohd. Sardar. During the life time of the widow-- Rahimunnisa succession enquiry commenced in the court of Nazim-E-Atiyat on 7.8.1905. During pendency of this enquiry, in 1341F (1932 AD) Sarf-E-Khas Mubarak (the private secretariat of the Nizam) took custody of the property to enure to the benefit of the successors-in-interest of Nusrat Jung-I. While the enquiry was pending the A.P. (T.A.) Atiyat Enquiries Act 1952 (the ‘1952 Act’) came into force. The matter stood transferred to the court of Nazim Atiyat. On 15.2.1954 the Atiyat court declared the respective shares of the heirs in the mash i.e, the property dealt by the Atiyat and the succession was settled. The order of the Atiyat court was submitted to the Revenue Minister on 24.12.1954, was approved by him and the Muntakhab was issued on 7.5.1955, in favour of various shareholders. The petitioner’s name figures at Sl.No.9 in Branch-II disclosing entitlement to an extent of 7/880 share;
C) Writ petitioners 1 to 4 are amongst the original Munthakab holders and the other petitioners are the legal heirs of the Munthakab holders;
D) Some of the share holders filed W.P.No. 227/60 for amendment of the Munthakab to be in consonance with the order of the Atiyat Court and for payment of mash. This writ petition was allowed on 01-04-1963;
E) Subsequent to the order in W.P.No. 227 of 1960, the District Collector, Hyderabad vide letter dated 14-02-1978 directed the Tahasildar, Hyderabad to implement the mutation as per the Munthakab in the ensuing Zamabandi, consequent on an application by Munthakab holders. The Tahasildar, Hyderabad (West) in his report dated 28-08-1984 addressed the Revenue Divisional Officer, Chevella, stating that the lands in question were classified as dry, wet and banjar poramboku, of an extent Ac.1635.34 guntas out of which Ac.891.26 guntas was granted as pattas to various individuals by the Government during its custody; and a further extent of Ac.719.28 guntas comprising porambok and Gairan (barren) land was vacant and Ac.134.06 gts. was converted into village site, Naddinala, road, temples etc., He further reported that his predecessor in a proceeding dated 15-03-1979 discussed all the issues, passed orders and the Muntakhab was issued by a competent authority and therefore it is decided to implement the Munthakab to the extent of Ac.719.36 in Kokapet village, in the revenue records;
F) Meanwhile one of the shareholders filed W.P.No. 6230 of 1969 for implementation of the Muntakab and this was dismissed as infructuous on 22-11-1985 in view of the report of the Tahasildar above mentioned;
G) There was considerable delay in implementation of the Muntakab even thereafter. There were several representations by the shareholders and consideration of these representations at several levels in the Government. Eventually, the Chief Commissioner, Land Administration and the Commissioner of Land Revenue (CLR), forwarded a report dated 21-06-2001 to the Government stating that in the totality of circumstances there was no option but to implement the Munthakab and requesting for necessary instructions in the matter to the Collector, Ranga Reddy District.
H) As the report of the CLR was not implemented, W.P.No. 20298 of 1993 was filed (by 170 individuals) for implementation of the Muntakhab and mutation of their names in the revenue records. This writ petition was disposed of by the judgment dated 09-07-2001 directing the Government to consider the report of the CLR and take further action in accordance with law, within six months.
I) In the letter dated 15-04-2002, the Principal Secretary observed that the Muntakhab cannot be implemented since the Nazim Atiyat had no jurisdiction on account of the A.P. Amendment Act 28 of 1956 (amending the 1952 Act); the Nazim Atiyat had no power or jurisdiction of adjudication; it had not verified the Jagir administration and other records; and since the Muntakab lands were villagers’ patta lands and Government lands.
J) Pursuant to further representations however, a memo dated 06-05-2004 was issued withdrawing the earlier memo dated 15-04-2002. The CLR was directed to instruct his subordinates to implement the Muntakhab to the extent of open land of Ac.719.00 and report to the CLR the steps taken with regard to illegal pattedars. Another memo was issued on 31-07-2004 directing implementation of the Muntakab, to the extent of Ac.719.00;
K) Consequent on the above two orders, the CLR on 07-10-2004 directed the District Collector and subordinates to implement the orders dated 06-05-2004 and 31-07-2004. As the Memo dated 06-05-2004 was not communicated to the District Collector, W.P.No. 9551 of 2004 was filed for “implementation” of the said memo.
L) However by the impugned memo, the earlier orders dated 06-05-2004 and 31-07-2004 were rescinded. The impugned memo is already challenged in W.P.No. 10084 of 2006. The petitioners as heirs of the original Muntakhab holder are filing the present writ petition (W.P.No. 3421 of 2008) similarly questioning the impugned Memo;
M) The custody of the property by the Surf-e-khas Mubarak continued now by the Government, is in the capacity of a trustee holding the property by and on behalf of the beneficiaries. Since the matter was settled by the Nazim Atiyat, the Muntakhab should be implemented. The impugned memo is illegal as no notice was issued to the affected parties and the Government has also no power to review or rescind the earlier orders dated 06-05-2004 and 31-07-2004.
The defense of the State -- in W.P.No. 3421 of 2008:
As is the practice, though the impugned Memo issued by the Special Chief Secretary to the Government is challenged, the 4th respondent (the District Collector, Ranga Reddy District) has filed a counter dated 04-03-2008. To the extent relevant and material the averments in this counter are:
(A) Mr. K.S.B. Ali allegedly representing 203 legal heirs of Nusrat Jung-I has already filed W.P.No. 10084 of 2006 inter alia challenging validity of the Memo dated 21-05-2005 and G.O.Ms.No. 1084 dated 06-06-2005 and this writ petition is pending. K.S.B. Ali again filed W.P.No. 14439 of 2006 challenging the tender-cum-auction of land. This writ petition was dismissed by a learned single Judge on 14-07-2006 permitting the petitioner to approach the Civil Court for appropriate declaration and injunction. Thereagainst the petitioner Ali filed W.A.No. 887 of 2006 which was also dismissed concluding that the legal heirs of Nusrat Jung-I were not granted property rights in respect of Kokapet land by the Nazim Atiyat and the then Revenue Minister. Aggrieved thereby SLP (Civil) No. 23397 of 2007 was filed and on the appellant’s (Ali’s) representation the Supreme Court disposed of the Special Leave Petition on 13-12-2007 permitting withdrawal of W.P.No. 14439 of 2006; set aside the judgments in W.A.No. 887 of 2006; and in W.P.No. 14439 of 2006 and dismissed the writ petition as withdrawn, leaving the issues open and granting liberty to the petitioner “to take appropriate remedy”;
(B) Validity of the Muntakhab came to be considered by the IV-Additional Judge, City Civil Court, Hyderabad, in O.S.No. 512 of 1973. That was a dispute between one M.Feroz Khan and another and some of the legal heirs of Nusrat Jung-1 represented by their GPA – J. H. Krishna Murthy (arrayed as the 1st defendant). The plaintiffs sought declaration of ownership of the schedule property in survey Nos. 41, 42 and 43 of Kokapet village. While defendant Nos. 2 to 5 remained ex parte, the 1st defendant – G.P.A., J. H. Krishna Murthy filed a written statement and an additional written statement claiming the property to be of Nusrat Jung-1 and of his legal heirs, on his demise. This claim was based on the Muntakhab No. 57 of 1955. In this suit one of the issues framed was : whether the suit lands are ‘Arazi Maqta’ lands belonging to Nusrat Jung-1 and whether the heirs of the said Nawab are in possession and enjoyment thereof. The trial Court after an elaborate trial recorded the finding that the lands under the Muntakhab do not belong to Nusrat Jung-1 and his heirs were not in possession and enjoyment of the lands. The Court further held that Nazim-e-Atiyat had clearly held that Kokapet village was abolished [under the A.P. (Telangana Area) (Abolition of Jagirs) Regulation, 1358-F] and what was released to the heirs of Nusrat Jung-1 under the Muntakhab was only commutation sums which alone were Atiyat grants within the meaning of Section 2 (1)(b)(i) of the 1952 Act.
(C) The above decision was upheld in C.C.C.A.No.142 of 1976. This Court by the judgment dated 11-12-1985 confirmed the judgment in O.S.No. 512 of 1973. While disposing of W.A.No. 887 of 2006 this Court considered the judgment in C.C.C.A.No. 142 of 1976 and held that the judgment of the Civil Court had become final.
(D) Kokapet village was merged along with Nizam State in the Hyderabad State during 1949-50 and thereafter Kokapet is treated as an independent Revenue/Ryotwari village. Even prior to the above merger an extensive revision survey was conducted in 1342-F and published in 1355-F (1945) wherein it was treated as Government land and as an independent Ryotwari village.
(E) The available revenue records of more than seventy five (75) years show Kokapet village as Ryotwari village. The village basic records, survey and settlement records and other revenue records such as Sethwar, Wasool Baqui and village map also show that it is a Ryotwari village wherein several ryots are shown as pattedars. The Atiyat Court had no jurisdiction over Khalsa or ryotwari lands and Kokapet village has all the characteristics of a ryotwari village similar to other villages of Sarf-e-Khas area, having maintained basic revenue, survey and settlement records prior to 1946-AD and is deemed to have been merged with Diwani/Government along with other villages of Sarf-e-Khas, under the Sarf-e-Khas (Merger) Regulation 1358-F, on 05-02-1949.
(F) For an enquiry under provisions of the 1952 Act, the grant should fall within the definition of Section 2 (b) of the Act. Since Kokapet village was never treated as Jagir or Inam lands as on the date of merger into Hyderabad State and Kokapet village is an independent ryotwari village, no reliance can be placed on the Muntakhab to claim title to the property and no rights flow from the Muntakhab.
(G) The contention that the land is the self-acquired property of the petitioners’ ancestors; that it was taken over for supervision by the Nizam; and pursuant to Atiyat Inquiry, successorship was determined and the Muntakhab issued by the competent authority, is specifically denied and no documentary evidence is filed in proof of the same.
(H) The 1952 Act has no application to matters relating to succession to property/self-acquired properties. If the petitioners are basing their claim on the Muntakhab, then the property in question should have necessarily devolved by way of a grant and the plea that the property is self-acquired/purchased is contradictory.
(I) Mr. K.S.B. Ali claiming to be the representative of 203 legal heirs of Nusrat Jung-1 appears to have submitted a representation on 05-08-1999 to the Government for release of lands in Kokapet village as per the Muntakhab and to implement the names of successors in the revenue records. The Government on 15-04-2002 by an elaborate order traced the history of the lands, pointed out the illegality or nullity of the Muntakhab, in view of non-applicability of provisions of 1952 Act, and rejected the claim of Mr.K.S.B. Ali.
(J) However on 06-05-2004, on another representation dated 06-01-2003 of Mr. Ali, Government directed implementation of the Muntakhab, without setting aside its earlier order dated 15-04-2002, without recording any reasons and directed the CLR to take necessary action. Another Memo dated 31-07-2004 reiterated the direction for implementation of the Muntakhab. Thereafter in Government Memo dated 30-10-2004 the order issued in the Memo dated 06-05-2004 was kept in abeyance. Eventually the impugned Memo was issued rescinding the earlier orders dated 06-05-2004 and 31-07-2004 and reviving the order dated 15-04-2002. Consequently, the Muntakhab is not recognized by the Government.
(K) The petitioner Nos. 5 to 22 have not pleaded the basis for their claim to be the legal heirs of Nusrat Jung-1 and this un-substantiated plea is specifically denied. The petitioners failed to initiate any proceedings pursuant to the Muntakhab; slept over the matter since 1955 and are therefore disentitled to relief on account of latches and abnormal delay.
(L) The order of the Nazim-E-Atiyat Court dated 15-02-1954 does not purport to confer any title or right over the property in Kokapet village except referring to the fact that Kokapet village was taken over by the Government under the Abolition of Jagirs Regulation. Even the order of the Revenue Minister dated 24-12-1954 does not confer any right or title on the petitioners or the alleged successors of Nusrat Jung-1. A note by the Minister (assuming it to be true) cannot be treated as an order recognizing the title of the legal heirs of Nusrat Jung-1.
(M) In any event, alternatively and without prejudice to the preceding averments, the rights if any of the holders of the Muntakhab and flowing therefrom are extinguished by non-enjoyment of those rights for over fifty (50) years and are barred by limitation.
(N) According to the Abolition of Jagirs Regulation read with the Jagir (Commutation) Regulation, 1359-F, Jagirdar/Makthadar or his successors on the date of taking over of the Jagirs were entitled to only ‘commutation amount’ in lieu of the benefit of the grant, except lands which were under direct and personal cultivation of the Jagirdar or their successors.
(O) Government orders dated 06-05-2004 and 31-07-2004 were never communicated to the petitioners. Therefore, such un-communicated orders/proceedings would not confer or create any rights in any person. Withdrawal of such memos, even without notice, is therefore of no legal consequence. Also, the orders dated 06-05-2004 and 31-07-2004 were not passed at the instance of the petitioners.
Chronology of the relevant facts in brief:
Individual claims by the several writ petitioners, whether as heirs of Nusrat Jung-1 (specified in the Muntakhab) or successors in interest of such heirs or otherwise; and in respect of several distinct extents of land in Kokapet village notwithstanding, the seminal issue is whether the extent of Ac.1635-34 guntas in Kokapet belongs to the State or the heirs of Nusrat Jung-1 are entitled thereto. This core claim is presented as a challenge to the impugned Memo whereby the earlier orders/decisions, dated 06-05-2004 and 31-07-2004 were rescinded. The relevant facts must therefore be recapitulated, in brief :
Under a sale deed dated 17th Rabi Awal, 1269 H (1852 A.D.) Nusrat Jung-1 purchased the schedule property, of an extent of Ac.1635.35 gts., from the vendors, the five sons of Mir Jouhar Ali khan, son of Mir Hussain Ali Khan alias Asad Nawaz Jung (late), the wives of Mir Jouhar Ali Khan – Imtiazunissa Begum, Hayatunissa Begum and the daughters of Riazunissa Begum (the wife of Mir Asad Nawaj Jung) – Navrooz Begum and Moula Begum. The property then known as Koutham Kunta and thereafter as Asadnagar is presently Kokapet village.
Nusrat Jung-1 died issueless around 1875 leaving behind the widow – Rahimunnisa Begum, who died on 10-10-1916. Nusrat Jung-1 had two paternal first cousins – Nawab Gulam Hussain and Nawab Md. Sardar.
On 16-01-1916 the entire properties of late Nusrat Jung-1 were taken over by Sarf-e-Khas Mubarak (the private secretariat of the Nizam) for supervision. A judicial branch of Sarf-e-Khas Mubarak initiated succession inquiry which was later transferred to the Court of Nazim Atiyat which was constituted under provisions of the 1952 Act.
In 1920 the heirs of Nusrat Jung-I represented to the Nizam for grant of Kokapet Jagir in their favour. By a Firman dated 15th Jamadeeussani–1339–H, the Nizam decreed rejection of the representation and granted only maintenance allowance, on compassionate grounds.
It requires to be noticed however that the learned counsel appearing for K.S.B. Ali (respondent) in W.A.No.1164 of 2009 (Sri V.L.N.G.K. Murthy, Advocate) contended that Kokapet was not a Jagir and Maktha Kokapet was taken over only for supervisory/temporary attachment in 1916. This supervisory custody continued till 1926. Thereafter the “non-legal” heirs of Nusrat Jung – I, pursuant to a civil court order became pattedars up to July, 1932. Thereafter the property was again taken over for supervisory custody on a dispute between the non-legal heirs. It is contended by Sri Murthy that what was rejected by this Firman dated 1339-H was only a representation pertaining to custody of properties constituting Jagirs and Kokapet not being a Jagir is not covered by this Firman or by the subsequent Firman dated 4th Zeekada 1343–H. In fact, the Firman dated 4th Zeekada 1343–H was issued in response to another representation made by one of the heirs, Gulam Mohammed, for restoration of the Jagirs of Nusrat Jung– I, is also the contention.
In 1949, Jagirs were abolished under the Abolition of Jagirs Regulation and in 1359F the A.P. (T.A.) Jagirs (Commutation) Regulation was enacted providing for interim allowance payable, determination of commutation and abolition of Jagirs. Then followed the 1952 Act, providing for Atiyat enquiries.
The Atiyat Court by its order, dated 15-02-1954 held that lands in Kokapet village deserve to be confirmed as Madad-e-Maash (grant-in-aid) in favour of heirs of the late Nusrat Jung-1; that though the land enjoyed by the holders as Madad-E-Maash was subsequently constituted into a separate village; the Maash (the property) will be deemed to have been continued only as Arazi (inam lands), is confirmed as such and Kokapet was regarded as a village only for administrative purposes.
The Atiyat Court also held that Kokapet was taken over by the Government under the Abolition of Jagirs Regulation; this action was not challenged by Maashadars and the question of appointing Qabiz for lands included in the village does not arise. In respect of the lands in Bagh-e-Asifnagar (another village having lands of Nusurat Jung-1), the Atiyat Court held that each of Maashadars (holders of the property) is entitled to his respective share and the extents being small the Collector should formulate proposals for disposal of lands by sale or otherwise after obtaining permission from the Government; should dispose of the same and distribute the money among the Maashadars.
Gulam Mohammed and another, aggrieved by the decision of the Atiyat Court dated 15-02-1954 preferred an appeal to the Board of Revenue, which was rejected by the order dated 24-09-1954 and the order of the Atiyat Court was upheld.
The order of Atiyat Court was placed before the Revenue Minister in the form of a note and approved by him on 22-12-1954. The Muntakhab did not set out the number of Sendhi (excise) trees on the land and the claimants were therefore denied their consequent rights.
The claimants applied to the Assistant Nazim Atiyat for amendment of the Muntakhab (for inclusion of Sendhi trees). The application was rejected. Claimants then approached the Atiyat Court which also rejected their claim. They unsuccessfully approached the Board of Revenue and thereafter filed W.P.No. 227 of 1960. On 01-04-1963 this Court allowed the writ petition and declared the claimants entitled to inclusion of income from Sendhi trees in the Muntakhab, directed the respondents to amend the Muntakhab and awarded Rs.3,980-4-0 as maash. In the judgment in W.P.No.227 of 1960 this Court however declined to grant the relief of restoration of the property.
One K.S.B. Ali (claiming to represent 203 legal heirs of Nusrat Jung-1) approached the Government several times seeking release of lands covered by the Muntakhab in favour of the legal heirs.
Firoz Khan and another filed O.S.No.512 of 1973 (originally O.S.No.10 of 1967) for a declaration that they are the owners of the plaint schedule properties in survey Nos.41, 42 and 43 of Kokapet Village. J.H. Krishna Murthy and four others were impleaded as defendants in this suit. Krishna Murthy was impleaded as the GPA of the heirs of Nusrat Jung – I. Krishna Murthy through his written statement claimed entitlement to the lands on the strength of the GPA granted by the heirs of late Nusrat Jung – I and relied on the Muntakhab in support of the case of the defendants. The plaintiffs also prayed for a permanent injunction or in the alternative for recovery of possession of the suit lands.
By the judgment dated 30-06-1976, the Trial Court considered the entire evidence and by an elaborately reasoned order decreed the suit. The Trial Court concluded that the stand taken by the defendants was incorrect and observed that the two Firmans clearly established that the lands in question (Kokapet lands) were Jagir lands; that the legal heirs of Nusrat Jung – I had also admitted in cross-examination that some of them had filed applications for restoration of the Jagir lands to the Nizam which was rejected; that the first defendant (Krishna Murthy) had not produced any evidence to establish that the suit lands were acquired by Nusrat Jung – I under any purchase; and that the legal heirs of Nusrat Jung – I were entitled only to commutation amounts. This judgment became final as the appeal thereagainst by the defendants was dismissed by this Court by the judgment dated 11-12-1985 in C.C.C.A.No.142 of 1976.
170 persons claiming to be heirs of Nusrat Jung-1 filed W.P.No.20298 of 1993 for implementation of the Muntakhab as confirmed by the Revenue Minister’s order dated 24-12-1954 and for mutation of their names in respect of the lands in Kokapet village. Reliance was placed by the petitioners (apparently during oral hearing of the writ petition) on a letter dated 21-06-2000 addressed by the CLR to the Government expressing an opinion that the Muntakhab must be implemented. By the judgment dated 09-07-2001 a learned single Judge disposed of the writ petition directing the Government to consider the report of the CLR and take further action in accordance with law, within six months. Thereafter several representations were made, including by Mr. Ali.
On 15-04-2002 the Principal Secretary to Government, Revenue Department, considered the order of this Court (dated 09-07-2001 in W.P.No. 20298 of 1993) and rejected (by an elaborately reasoned order) the request of K.S.B. Ali for release of the lands as per the Muntakhab. By a subsequent Memo dated 06-05-2004 however, the order dated 15-04-2002 was withdrawn, again by the Principal Secretary to the Government. The Memo dated 06-05-2004 records no reasons whatsoever for rescinding the earlier elaborate order and was issued pursuant to representation of K.S.B. Ali for reconsideration of his request, for implementing the Muntakhab. The Memo dated 06-05-2004 merely states: Government after careful examination of the issue as per the Act and Rules in force, hereby withdraw the orders issued in the Government Memo 1st cited and the CCLA was directed to instruct the Collector, Ranga Reddy District and the concerned authorities to implement the orders of Atiyat Court issued in Muntakhab No. 57 of 1955.
A Memo dated 31-07-2004 reiterated the order dated 06-05-2004 and the CLR was directed to implement the earlier Memo dated 06-05-2004. In turn, the CLR on 07-10-2004 directed the Collector, Ranga Reddy District to ensure communication of the Memo dated 31-07-2004 to the Mandal Revenue Officer, Rajendranagar for handing over possession of the open land as per the M.R.O.’s report dated 28-08-1984 and report compliance.
It requires to be noticed that while the order dated 15-04-2002 (rejecting the request of K.S.B. Ali for release of lands) was marked to K.S.B. Ali, the order dated 06-05-2004 (rescinding the decision in the order dated 15-04-2002) was not so marked. K.S.B. Ali however filed W.P.No.9551 of 2004 for a direction to the CLR to communicate the order dated 06-05-2004 to the District Collector, Ranga Reddy District and the Mandal Revenue Office, Rajendranagar and to implement the Atiyat Court’s order. Sri Ali however does not in this writ petition plead that the Memo dated 06-05-2004 was communicated to him or how he came to procure this instrument. At the admission stage, a learned single Judge disposed of the writ petition declining to grant the substantive relief sought but directed the CLR to communicate the Memo dated 06-05-2004 to the District Collector, Ranga Reddy and the Mandal Revenue Officer, Rajendranagar, expeditiously. No direction was sought or granted to communicate this decision to the petitioner, Ali. The fact however remains, the order dated 06.05.2004 was not formally communicated to any person(s) including K.S.B. Ali.
The impugned Memo revisited the whole issue and rescinded the earlier memos dated 06-05-2004 and 31-07-2004. In this order (setting out elaborate reasons) it was concluded that the finding of the Atiyat Court (in its order dated 15-02-1954) (that Kokapet village was taken over by the Government under the Abolition of Jagirs Regulation and the said action was not challenged by the Maashadars and appointment of Qabiz for the lands included in the village does not arise), destroys the claim of the representationists, of the lands being Arazi Maktha; that according to provisions of the Abolition of Jagirs Regulation read with the Jagir (Commutation) Regulations 1359-F, Jagirdar/Makthadar or his successor on the date of taking over of Jagirs were entitled to only commutation amounts, excepting lands which were under direct and personal cultivation of the Jagirdars or their successors as home farm lands under Section 17 of the Abolition of Jagirs Regulation; that there are no home farm lands in the name of the claimants as per the revenue and survey settlement records maintained from 1355-F (1945 AD); that open land would not fall within the definition of ‘Home Farm Lands’ as per provisio to Section 17 of the Regulation; that the Muntakhab was issued and acted upon by drawing commutation from the Nizam-e-Atiyat; and therefore there was no basis for any further claim in the matter. This Memo also concluded that the issue was finally decided by the 15-04-2002 order issued with approval of the competent authority; and that as the matter was finally decided, the subsequent orders dated 06-05-2004 and 31-07-2004 were without jurisdiction and competence.
K.S.B. Ali filed W.P.No.14439 of 2006 challenging tenders issued by the Hyderabad Urban Development Authority for sale of Ac.100-00 in Kokapet village and sought a declaration that the said authority has no right in the property of the petitioners and the auction and sale process was illegal.
A learned single Judge on 14-07-2006 dismissed the writ petition ruling that under Article 226 of the Constitution an inquiry as to questions of title in immoveable property cannot be considered and observed that the petitioner may approach the Civil Court for appropriate declaration and injunction.
There against W.A.No. 887 of 2006 was filed by Ali. This appeal was dismissed by a learned Division Bench by the order dated 26-10-2007 after contest. Before the Supreme Court in SLP, the writ petitioner/appellant – K.S.B. Ali sought leave to withdraw W.P.No.14439 of 2006, W.A.No. 887 of 2006 and for rescinding the order in the writ petition and writ appeal. This request was granted and the Supreme Court granted liberty to K.S.B. Ali to pursue “appropriate remedy”, leaving the issues open.
However after the order of the Supreme Court (dated 13-12-2007) several writ petitions were filed seeking reliefs already adverted to and these were tagged on to W.P.No. 10084 of 2006, earlier filed by K.S.B. Ali and were disposed of by the common judgment dated 02-06-2009, where against are these appeals preferred.
Analyses:
As noticed, the sixteen (16) appeals are directed against the common judgment dated 02-06-2009 in eight (8) writ petitions. W.P.No. 29063 of 2009 also assails the Memo dated 21-05-2005. The challenge to the impugned Memo is on several grounds but principally on two grounds viz.,
(a) that the rights accrued to the legal heirs of Nusrat Jung-1 (the several petitioners claim to be the heirs or their successors in interest of Nusrat Jung-1) on account of the earlier “Government” orders dated 06-05-2004 and 31-07-2004 are rescinded by the impugned Memo, adversely affecting accrued rights and without notice and opportunity to them before issue of such prejudicial order; and
(b) that the impugned Memo records that the Munthakab conferred no rights in the schedule property to the heirs of Nusrat Jung-1 and only declared their entitlement to commutation amounts (which were already paid); and this adverse and fundamentally flawed interpretation and conclusion is recorded without notice and opportunity to any of the affected parties, including the petitioners.
The earlier round of litigation:
It is noticed earlier in this judgment that by the order dated 14-07-2006 a learned single Judge dismissed W.P.No. 14439 of 2006 on the ground that a proceeding under Article 226 is inappropriate when inquiry into a question of title to immoveable property is involved. Against this judgment, the petitioner – K.S.B. Ali preferred W.A.No. 887 of 2006 which was dismissed after critical analyses and an extensively reasoned judgment. The judgments, in the writ petition and the writ appeal however stood rescinded; W.P.No. 14439 of 2006 dismissed as withdrawn and liberty granted to the petitioner – Ali to take “appropriate remedy”, by the order of the Supreme Court dated 13-12-2007 in Special Leave to Appeal (Civil) No. 23397 of 2007. This was at Ali’s instance as he apparently desired to avoid the consequences of this Court’s judgment and did not desire to pursue the SLP to its logical conclusion. The elaborate judgment on merits of Ali’s claim (in the writ appeal) inter alia for implementation of the Munthakab thus stood eclipsed.
We are conscious that in the circumstances the rationes and conclusions recorded by the learned Division Bench of this Court in the judgment dated 26-10-2007 in W.A.No. 887 of 2006, are eclipsed and inoperative. We however refer in brief to the issues framed for consideration and the findings thereon recorded in the writ appeal, only for analyses whether the substantive claim of the petitioners i.e., for implementation of the Munthakab ought to be entertained by this Court, and to consider whether the orders dated 06-05-2004 and 31-07-2004; or the impugned Memo, to the extent the impugned memo analyzed and interpreted the chronology of facts leading to the issue of the Munthakab, is either declaratory of any rights in the schedule property in favour of the Government or deprivatory of the writ petitioners’ rights thereto, as the case may be; and whether the impugned Memo is unsustainable for violating the non-derogable norm of audi alteram partem. We will therefore advert to the judgment in Writ Appeal No. 887 of 2006 as we develop our analyses of the lis before us. But first;
The judgment under appeal:
The learned single Judge noticed that pursuant to the order of this Court in W.P.No. 20298 of 1993 and considering the letter of the CLR dated 21-06-2001, Government had examined the matter and by the order dated 15-04-2002, rejected the representation of K.S.B. Ali and concluded that the Muntakhab cannot be implemented for the several reasons recorded therein. Government however entertained further representations from K.S.B. Ali and withdrew the order dated 15-04-2002 by the order dated 06-05-2004. This was reiterated in a subsequent order dated 31-07-2004. The orders dated 06-05-2004 and 31-07-2004 also directed implementation of the Muntakhab. The judgment noticed that consequent on withdrawal of the order dated 15-04-2002 the report of the CLR dated 21-06-2001 stood revived wherein the CLR had opined that there was no option but to implement the Muntakhab. On the chronology of events and the several orders noticed, the judgment predicated that since valuable rights had accrued to the petitioners (by the Memos dated 06-05-2004 and 31-07-2004) these could not be taken away without notice and opportunity.
On the aforesaid premise the judgment under appeal concluded that the impugned Memo is unsustainable.
The judgment also referred to extensive submissions addressed by the contesting parties touching upon merits of the respective claims and formulated the following issues as arising for consideration, in the context:
(a) Whether the land was private acquisition of the Nawab and whether it can be treated as Inam or grant by the Government?
(b) Whether the possession thereof was taken by the Nizam’s Government on the death of the Nawab, and how it was dealt with, from time to time?
(c) Whether the enquiry by the Court of Nizam Atiyat and the resultant order, dated 15-02-1954 and the Muntakhab dated 12-05-1955 suffer from legal or factual infirmity, who can pronounce upon it; and the nature of proceedings, in which, such an exercise can be undertaken?
(d) Whether the decree in O.S.No. 512 of 1973 would bind the petitioners, particularly when none of them were made parties to the suit and whether a suit can be filed straight away against a GPA, without impleading the principal?
(e) Whether the claim made on behalf of the petitioners in W.P.No. 227 of 1960, insofar as it related to execution of the Muntakhab, stood rejected and if so, what is the effect of orders passed by this Court in W.P.No. 20298 of 1993? And
(f) Whether the land was covered by the provisions of A.P. (T.A.) Abolition of Inams Act, and A.P.(T.A.) (Abolition of Jagirs) Regulations etc., and if so, the proceedings that were initiated under those enactments, vis--vis the land?
The learned single Judge however declined to deal with these questions and opined that the State Government could examine these aspects and categorically stated that the limited ground on which this Court invalidates the impugned Memo is; that it is violative of principles of nature justice and that several issues were determined therein, without hearing the affected parties.
In respect of G.O.Ms.No.1084 dated 06-06-2005 (another order of the Government impugned in some of the writ petitions), the learned single Judge after observing that the lands mentioned therein cannot be alienated, held that depending upon the outcome of proceedings that may ensue after the Government passes orders (after giving notice to the petitioners), consequential remedies could be pursued. The writ petitions were allowed with the following directions:
Operative position of the Judgment under appeal:
(a) the impugned memo dated 21-05-2005, is set aside, as violative of principles of natural justice;
(b) the Government, in its Revenue Department, shall pass fresh orders, after issuing notice to the petitioners. It shall be open to the petitioners to urge all the grounds before the Government.
(c) G.O.Ms.No. 1084, dated 06-06-2005, is upheld, however, with a rider that as and when the rights of the petitioners vis--vis the lands are determined in their favour, it shall be open to them, to pursue their remedies, in this regard;
(d) This judgment shall not be treated as a pronouncement or adjudication of any dispute, or question, involved in the matter; and
(e) It shall be open to the legal representatives of late Nawab Nursat Jung Bahadur-1, or their authorized agent, to pursue the proceedings before the Government, and the dispute, if any, among them, may be agitated before a competent forum.
As is clear from the observations set out in direction (d) above, there was no adjudication or determination of any of the substantive disputes between the parties, particularly with regard to the vitality of the Muntakhab. These disputes are relegated for de novo consideration by the Government, and after notice to the petitioners.
The contours of the disputes and judgment in W.A.No. 887 of 2006:
At this stage of the analysis, the points framed for determination and the conclusions recorded by the Division Bench of this Court (judgment dated 26-10-2007) in W.A.No. 887 of 2006 may be noticed (notwithstanding the plenary eclipse of that judgment, in view of the order of the Supreme Court dated 13-12-2007 in SLP (Civil) No. 23397 of 2007).
The issues framed (in W.A.No. 887 of 2006):
(1) What were the powers and jurisdiction of the Nazim Atiyat under the provisions of the 1952 Act?
(2) What is the scope and purport of the order dated 15-02-1954 of the Nazim Atiyat Court?
(3) What is the true purport of the order dated 24-12-1954 of the Honourable Revenue Minister and whether the said order falls within the scope of the 1960 Act and gets validated under the provisions of the said Act even if the Honourable Revenue Minister had no jurisdiction to pass the said order?
(4) Whether Muntakhab No. 57 of 1955 dated 12-05-1955 is in conformity with the order dated 15-02-1954 of the Nazim Atiyat Court, and if not, whether the same is enforceable in law?
(5) What is the scope of the order dated 01-04-1963 in Writ Petition No. 227 of 1960 of this Court and whether this order operates as constructive res judicata against the appellant?
(6) Whether the Royal Firman has a bearing on the relief claimed by the appellant in the present proceedings?
(7) What is the effect of the judgment dated 13-06-1976 in O.S.No. 512 of 1973 on the file of the IV-Additional Judge, City Civil Court, Hyderabad?
The conclusions recorded (in W.A.No.887 of 2006):
(a) On Issue No.1 -- that the Atiyat Courts (under the 1952 Act) whether pre-amendment or post the 1956 amendment thereto had no power to make a grant regarding Jagir lands; had power to make only cash grants except in case of Inam lands, by whatever name the cash grants are called; and in any event in case of erstwhile Jagir lands, Atiyat Courts could only make cash grants and had no jurisdiction to confer property rights.
(b) On issue No.2 -- that by the order dated 15-02-1954 the Nazim Atiyat Court held: (i) that land in Kokapet village was originally held by late Nusrat Jung-1; (ii) Kokapet village was taken over by the Government as part of abolition of Jagirs; and (iii) in view of the said taking over, which went unchallenged, no relief could be granted in favour of legal heirs of late Nusrat Jung-1.
(c) On issue No.3 -- that the order dated 24-12-1954 of the Hon’ble Revenue Minister conferred no additional legal rights, other than what the Nazim Atiyat Court had granted, i.e., conferred no rights over Kokapet village lands; the only aspect contained in the order of the Hon’ble Minister (and not found in the order of the Nazim Atiyat Court) is mention of amounts of Rs.3980/4 and 3980/9; and provisions of the 1960 validating Act do not extend to validating any orders passed by the Revenue Minister in appeal, revision or review in relation to the 1952 Act; and the order of the Atiyat Court subject to any decision of the Board of Revenue in appeal, were final under the 1952 Act.
(d) On issue No.4 -- that Muntakhab is a decree following orders passed by competent authorities and confirmed by the Atiyat Court; that the Muntakhab insofar as it included therein rights over land in Kokapet village and purporting to release Ac.1635-34 guntas in favour of the successors enumerated, is clearly inconsistent with the order dated 15-02-1954 of the Nazim Atiyat Court as well as the order of the Revenue Minister dated 24-12-1954; and pro tanto the inconsistency (with the judgment of the Atiyat Court), is unenforceable and no rights could be claimed by the appellant – Ali on the basis of the Muntakhab.
(e) On issue No.5 -- held that the judgment dated 01-04-1963 in W.P.No. 227 of 1960 is only confined to amendment of the Muntakhab to bring it in line with the order of the Nazim Atiyat as confirmed by the Revenue Minister; the judgment did not discuss about rights of successors (of late Nusrath Jung-1) over the lands of Kokapet village; relief in this judgment was confined to inclusion of Maash in the Muntakhab; and the judgment in no manner establishes any rights over the lands of Kokapet village. Further, as some of the legal heirs specifically sought a direction to execute the Muntakhab and deliver possession of the lands to the petitioners and failed to get the said relief (in W.P.No. 227 of 1960), are precluded from claiming similar relief as the judgment therein operates as constructive res judicata.
(f) On issue No.6 -- that on 4th Zeekada 1343-H a Firman was issued and some of the legal heirs of Nusrat Jung-1 approached the Nizam Government for restoration of lands. This Firman (translated copy) is to the effect that since the issue was already settled earlier no further consideration is warranted and the proceedings be consigned to the records. This Court also held that another Firman was passed which reads:
No claim made by any one can now be entertained regarding the Jagirs already assigned to Khalsa since this matter is a res judicata one. Apart from this there are some distant relatives of that Late Nusrath Jung who are at present quite poor and indigent and who have been proved as the legitimate ones should be issued guzara merely on compassionate grounds as per the opinion of the Executive Council. That is to say even male members whose names are entered in the Arzdasht and among them each person shall be paid Rs.30/- per month till life time from the date of this order and three Ladies whose names have been mentioned and out of them each lady shall be paid a guzara of Rs.15/- per month till life time. The guzara of each person shall be saved to the government after his or her death and it shall not be issued in the name of his or her heir or successor since this is purely mahwar based on compassionate grounds.
This Court observed that the two Firmans put at rest the entire claim of the legal heirs for restoration of the land; the two Royal decrees unequivocally ordained that the property was assigned to ‘Khalsa’ and a dispute already settled cannot be reopened; and that the earlier decision assigning the lands to Khalsa operates as res judicata. Consequently this Court held that the legal heirs are barred from making any claim contrary to the absolute and unassailable Royal decrees (the Firmans); and
(a) On issue No.7 -- concluded that in view of its findings on issue No.2, the conclusion by the Civil Court in O.S.No. 512 of 1973 (that the Nazim Atiyat Court had no power to confer rights over Jagir lands except to award cash grants) is correct and in view of the finality of this judgment (confirmed in C.C.C.A.No. 142 of 1976 by the judgment dated 11-12-1985 and no appeal having been preferred thereagainst), the same is binding on the legal heirs.
The grounds urged for the present appeals:
The State and the HMDA – appellants in the several appeals assail the judgment dated 02-06-2009 on several grounds; summarized herein:
(i) The judgment is in error in concluding that there was violation of principles of natural justice. In the absence of any prejudice pleaded and shown to have been suffered by the petitioners by the order issued in the impugned memo, non-issuance of notice before such order was passed, is of no consequence.
(ii) The learned single Judge ought to have held that since the orders passed in the letter dated 15-04-2002 (rejecting the representation of K.S.B.Ali for implementation of the Munthakab) had become final, the subsequent orders dated 06-05-2004 and 31-07-2004 (rescinding the decision set out in the letter dated 15-04-2002) and without setting aside the order dated 15-04-2002, is unsustainable per se. Therefore, rescinding the subsequent orders (dated 06-05-2004 and 31-07-2004) by the impugned memo, though without notice and opportunity, cannot be interfered with.
(iii) The learned single Judge ought to have held that the substantive relief sought in the writ petitions i.e., for implementation of the Munthakab is barred by the principle of constructive res judicata, in view of the judgment dated 01-04-1963 in W.P.No. 227 of 1960.
(iv) The Munthakab was held to have no legal basis by the judgment and decree dated 30-06-1976 in O.S.No. 512 of 1973. This judgment was confirmed and the appeal of the plaintiffs dismissed by this Court by the judgment dated 11-12-1985 in C.C.C.A.No. 142 of 1976. In the circumstances, the learned single Judge ought to have concluded that the claims of the writ petitioners are barred by latches and delay and res judicata as well.
(v) Kokapet, a Sarf-e-khas village of Atraf Balda District was inadvertently brought under the purview of the Abolition of Jagirs Regulation, consequent on the Nizam’s rule coming to an end; village Kokapet is deemed to have merged with the Diwani/Government along with other Sarf-e-khas villages under the Sarf-e-Khas (Merger) Regulation, on 05-02-1959; the Nazim Atiyat held that consequent on abolition of Jagirs, Kokapet village was taken over by the Government and therefore including the lands in the establishment of late the Nawab does not arise; the Muntakhab issued by Nazim Atiyat (in 1955) is invalid since the 1952 Act came into force from 14-03-1952, the rules framed thereunder came into force with effect from 05-04-1954, the power to grant Muntakhab was covered by A.P. Amendment Act No.XXVIII of 1956 and the Muntakhab issued in 1955, prior to coming into force of the Amendment Act is thus void and without jurisdiction.
(vi) The learned single Judge should have declined relief in view of the contradictory stands by the writ petitioners. On one hand the petitioners contended that Kokapet lands were neither Jagir nor Inam lands, but were acquired by Nusrat Jung-1 by purchase and by operation of law they became owners; and on the other claimed rights and title under the Muntakhab issued by the Nazim Atiyat. These claims are contradictory, incongruent and unsustainable.
(vii) The learned single Judge failed to notice that the Muntakhab insofar as it purports to entitle the succesors in interest of Nusrat Jung-1 to delivery of possession of Ac.1635-35 guntas of Kokapet village lands being a decree (pursuant to the Nazim Atiyat Judgment) was at clear variance with the judgment of Nazim Atiyat Court dated 15-02-1954 as well as the order of the Hon’ble Revenue Minister dated 24-12-1954 and is therefore inexecutable.
(viii) The learned single Judge ought to have noticed that since the schedule property was neither pleaded nor established to be Inam lands within the meaning of the said expression as defined in the 1952 Act read with the definition of the expression ‘Inam’ under Section 2 (a)(i) of the Hyderabad Enfranchised Inams Act, 1952, the Nazim Atiyat Court had no jurisdiction under the 1952 Act to declare a grant in property in respect of non-Inam lands and had jurisdiction only to consider cash grants. In fact, the Nazim Atiyat Court by its order dated 15-02-1954 had only granted cash compensation and did not declare rights in the property; the Revenue Minister had also not varied this judgment while exercising revisional powers vide his order dated 24-12-1954. The Muntakhab being clearly contrary to the judgment of the Atiyat Court and the order of the Revenue Minister, is therefore unsustainable and inexecutable.
(ix) In any event, the learned single Judge ought to have held that in view of the two Royal decrees (Firmans) issued by the Nizam (one dated 15th Jamadi-us.sani-1343H and another dated 4th Zeekada – 1343H – marked as Exhibits A.14 and A.15 and their English translations as Exhibits A.14(a) and A.15(a) in O.S.No.512 of 1973), declaring the finality of the lands having been assigned to Khalsa and that only certain poor and indigent relatives of Nusrat Jung-1 are ordered to be issued guzara (maintenance) on compassionate grounds; and the Firmans being plenary orders of an absolute Monarch, extinguish all claims to the schedule property and for this reason as well, the Muntakhab cannot be implemented/enforced.
(x) The learned Attorney General for India (appearing for HMDA) contended that in any view of the matter, Mandamus being a discretionary remedy ought to be declined since a large number of alleged successors-in-interest of Nusrat Jung-1 had presented a representative lis through Mr. K.S.B. Ali in W.P.No. 14439 of 2006 inter alia for implementation of the Muntakhab and delivery of property and having failed in the writ petition and in W.A.No. 887of 2006; having availed valuable and scarce judicial time and invited a decision on the merits of their claims, thereafter approached the Supreme Court, pleaded for and obtained an order rescinding the judgment in the writ petition and writ appeal and withdrew the writ petition with liberty to take ‘appropriate remedy’. In the circumstances, the petitioners pursuing proceedings again under Article 226 constitutes an abuse of the process of the Court, disentitling issue of Mandamus;
(xi) The learned Attorney General specifically contended that having withdrawn the writ petition (W.P.No.14439 of 2006) before the Supreme Court, the petitioners cannot file another writ petition or pursue the same relief in any pending writ petition. In W.P.No.10084 of 2006 (one of the writ petitions disposed of by the judgment under appeal), K.S.B. Ali sought survey, demarcation and restoration of possession of 717 acres out of Ac.1635.35 gts as per the Muntakhab and compensation for the rest of the lands. The relief sought in this writ petition is substantially similar, with identical pleadings as in W.P.No.14439 of 2006, withdrawn in the Supreme Court.
(xii) The learned Attorney General urged that complex issues and questions, of title to (the scheduled) immoveable property: (a) regarding jurisdiction of the Atiyat Court; (b) the nature of the schedule property – whether Jagir, Inam or otherwise; (c) whether the claim for implementation of the Muntakhab and delivery of property is sustainable on account of the bar of res judicata or constructive res judicata (in view of the earlier judgments); (d) whether such relief is barred on account of latches, delay or limitation; and (e) whether the relief of recovery, of possession consequent on execution/ implementation of the Muntakhab, are barred by limitation, are all complex and intermeshed questions of facts and law, inappropriate for consideration under Article 226 of the Constitution; and
(xiii) The learned Attorney General emphatically asserted that neither the letter dated 15-04-2002; the subsequent memo dated 06-05-2004; the memo dated 31-07-2004; nor the impugned memo dated 21-05-2005 have been issued in exercise of any legislatively consecrated power, authority or jurisdiction, conferring on the State any judicial/quasi judicial authority, to adjudicate upon competing claims of title to immoveable property. It is contended that even on an empirical and expansive construction of the matter, the reasons, inferences, conclusions or findings set out in the several proceedings, could at best constitute an administrative view of the matter and an administrative response to representations. The letters/memos cannot determine, constitute nor extinguish rights to property. Adjudication of rights could only be before and by a forum legislatively authorized to adjudicate disputes between parties pertaining to immoveable property (by inherence/conferment of judicial power), even where one of the disputants is the State.
None of the writ petitioners have appealed against the common judgment under appeal, insofar as their other and substantive reliefs sought, were rejected, i.e., for implementation of the Muntakhab; mutation of their names in the revenue records; restoration of possession of the schedule property or declining to invalidate G.O.Ms.No.1084, Revenue Department, dated 06-06-2005. Only the State and the HMDA have preferred the appeals. As already adverted to, the learned single Judge allowed the writ petitions directing the Government in the Revenue Department, to pass fresh orders, after issuing notice to the petitioners and has set aside the impugned memo (dated 21-05-2005).
Singular issue for consideration in the appeals:
In the above circumstances, the only though generic issue that falls for consideration in the appeals before us is whether invalidation of the impugned Memo by the learned single Judge, while directing the Government to re-consider the issue after affording an opportunity to the petitioners, is sustainable.
As noticed earlier herein, the learned Attorney General has categorically urged that none of the orders (dated 15-04-2002, 06-05-2004, 31-07-2004, or the impugned memo dated 21-05-2005) flow from any authority conferred to adjudicate upon competing claims of the State on the one hand and the legal heirs/successors-in-interest of Nusrat Jung I on the other, with respect to the schedule property of Acs.1634.35 gts in Kokapet village. Neither the counsel for the writ petitioners in W.P.No.29063 of 2009 nor the counsel for the non-official respondents in the appeals have brought to our notice provisions of any legislation conferring power, authority or jurisdiction on the Government, the Principal Secretary or the Special Chief Secretary to adjudicate disputes between the State and the competing claimants with respect to the schedule property.
Judicial power is an integer of sovereign power which inheres in the superior Courts under our Constitutional presents (Articles 32, 131 to 142; Articles 225 to 228; Articles 230 and 231). The jurisdiction to adjudicate civil, criminal or other disputes are conferred on courts inferior to superior courts by Acts of the appropriate legislatures, (exercising legislative power qua the enumerated legislative fields) i.e., Article 246 read inter alia with Entry 95 of the Union List; Entry 65 of the State List; or Entry 46 of the Concurrent List, in the Seventh Schedule to the Constitution. Examples of such legislative conferment of judicial powers and authority are the Code of Criminal Procedure, 1973 and Code of Civil Procedure, 1908. There are other enactments which confer jurisdiction on courts or other tribunals. Illustrations of such conferment are the Administrative Tribunals Act, 1985, whereunder power to adjudicate is conferred on Administrative Tribunals qua Article 323A; jurisdiction to decide disputes is also conferred on other Tribunals under several enactments such as the Industrial Disputes Act, the Income Tax Act, the Stamp Act, Urban and Agricultural Lands Ceiling Legislation and Sales Tax enactments of several States. Section 9 of the Civil Procedure Code confers wide jurisdiction on courts to adjudicate all disputes of a civil nature except those specifically excluded by legislation.
In the case on hand, despite the inconsistent and often incoherent positions (evident from the orders dated 15-04-2002, 06-05-2004, 31-07-2004 and 21-05-2005), the State has doggedly adopted the position that the schedule property belongs to the State and not to the heirs of Nusrat Jung I. In the circumstances and absent any specific power conferred on any executive authority or agency to adjudicate disputes between the State on the one hand and the private claimants to the schedule property on the other, we are unable to countenance any power, authority or jurisdiction in the Government or other State actors (public officials), to adjudicate the competing claims. On this analyses and in the absence of any legislatively explicated exclusion of the jurisdiction of the Civil Court and the conferment of concurrent or exclusive adjudicatory jurisdiction on any authority, forum or tribunal, other than the Civil Court, neither the State nor any State actor has any power or authority to determine whether the schedule property belongs to the State or to the private claimants thereto. Other issues presented by the claimants/writ petitioners are equally contested and contestable and fall for adjudication.
We therefore conclude that the several instruments: dated 15-04-2002, 06-05-2004, 31-07-2004 and 21-05-2005 (impugned) have no determinative trajectory whatsoever and are neither constitutive, declaratory or deprivatory of any rights in the schedule property; either in favour of the State or in favour of the claimants (writ petitioners).
On 15-04-2002, the representation of K.S.B. Ali (claiming to be the sole representative of the heirs of Nusrat Jung – I) for implementation of the Muntakhab and restoration of possession in the schedule property to the legal heirs, of Nusrat Jung – I was categorically rejected, setting out detailed reasons therefor. This proceeding was communicated to the representationist Ali, who however took no steps to challenge this decision. He instead preferred a fresh representation (apparently dated 06-01-2003) for reconsideration. The 15-04-2002 decision was rescinded vide the memo dated 06-05-2004 and reiterated in the memo dated 31-07-2004. The decisions contained in these two proceedings (dated 06-05-2004 and 31-07-2004) constitute mere recorded administrative positions, one without any reasons (dated 06-05-2004) and the other setting out some reasons and conveying the State’s willingness to implement the Muntakhab. Thereafter the impugned memo was drawn up (on obtaining an opinion from the Advocate General), reiterating the initial position reflected in the letter dated 15-04-2002, i.e., that implementation of the Muntakhab by way of restoration of the schedule property to the heirs of Nusrat Jung I is unacceptable and not feasible of compliance and concluding that commutation amount of Rs.38,071.39 as ordered was already paid.
The judgment under appeal directs the Government to reconsider the issue after notice to the petitioners. What power, authority or jurisdiction the Executive branch of the Government is required to exercise, to adjudicate upon competing claims of itself and of the private claimants to the schedule property, is however not delineated in the judgment under appeal.
Our analyses herein before leads us to conclude that no power, authority or jurisdiction, either judicial or quasi-judicial is conferred on the State Government, or on any officer of the State, whether concurrent with or to the exclusion of the indisputably available power, authority and jurisdiction of the civil court under Section 9 CPC to determine whether the schedule property belongs to the State; to the competing claimants, including the writ petitioners; or its possession is required by law to be restored to the claimants, duly considering pleas regarding the bar of limitation period.
Remanding the matter to the Government (for a de novo consideration) is therefore a mandamus to execute a wholesomely futile exercise, of no legal consequence. In the absence of any substantive adjudicatory jurisdiction, contoured by explicated procedural prescriptions for exercise of such jurisdiction, we are unable to countenance any capacity either, in the State Government (apart from authority and jurisdiction) to determine the several complex questions of fact and law which arise for consideration, adverted to earlier in this judgment; and which call for critical analyses and determination of pleadings and evidence, oral and documentary along with several intermeshing and applicable statutory instruments.
Since we find no jurisdiction, power or authority in the State and as the State is indisputably in possession of the schedule property, the appropriate recourse open to the writ petitioners (to effectuate their claim for restoration of possession) is to pursue appropriate remedies before the civil court of competent jurisdiction or any other Forum or Tribunal legislatively authorized to adjudicate the several disputed questions of law, fact and jurisdiction, integral to the writ petitioner’s claims and competing claims of the appellant State, in respect of the schedule property.
What is the “appropriate remedy” for Mr. Ali to pursue:
The Hon’ble Supreme Court on 13-12-2007 disposed of SLP(Civil) No.23392 of 2007 permitting Sri K.S.B. Ali to withdraw writ petition No.14439 of 2006; has set aside judgments of this Court in the said writ petition and in W.A.No.887 of 2006 (preferred thereagainst); and accorded permission to the appellant K.S.B. Ali “to take appropriate remedy”. Filing of another writ petition or pursuing the pending writ petition No.10084 of 2006 (by K.S.B. Ali) is not in our considered view, the appropriate remedy in the circumstances.
The BSNL precedent:
The learned Attorney General referred to the decision in BSNL v. Telephone Cables Limited (2010) 5 SCC 213)to support the contention that the liberty granted (by the Supreme Court to Sri K.S.B. Ali, while permitting withdrawal of W.P.No.14439 of 2006 and setting aside the judgments of this Court in the said writ petition and in W.A.No.887 of 2006), to take appropriate remedy and setting at large the issues raised, does not enable filing of another writ petition seeking the same reliefs earlier sought in W.P.No.14439 of 2006 nor enable pursuing the pending W.P.No.10084 of 2006, wherein substantially similar reliefs are sought and on pleadings identical to those in W.P.No.14439 of 2006. The learned Attorney General drew our attention to the observations of the Supreme Court in paragraphs 33 to 41, of the S.C.C. report.
The relevant facts in brief leading to the BSNL judgment may be noticed : The respondent had earlier filed a writ petition challenging a higher vendor rating approved by the BSNL to another bidder, for supply of certain specified type of cables. This writ petition was allowed on the ground that the vendor rating (VR) given by BSNL to the competing bidder was not proper and was contrary to the formulae laid down in the tender document. The High Court however found no mala fides, bias or arbitrariness in the process of assessment, only a bona fide error or erroneous understanding of the principles relating to assessment. Noticing the fact that BSNL had already placed orders and only a small quantity remained un-allotted, the High Court directed the BSNL to re-process the VR, and if as a consequence, the respondent secured the highest rating, to allot to it any un-allotted quantity of cables. The High Court further observed that if after given effect to the balance supply, the respondent was entitled to further supplies, it would be open to the respondent to pursue its remedies against BSNL for compensation/damages as may be available to it in law. Since BSNL had already placed orders against the tenders issued in 2002 for the full quantities notified, it took no further action to revise the respondent’s rating. The respondent issued a notice to BSNL seeking a specified amount as compensation. There being no response from BSNL, the respondent filed another writ petition but withdrew the same with liberty to take appropriate civil remedies. Thereafter, the respondent issued a notice to BSNL seeking reference to arbitration, of its claim for compensation. BSNL rejected the request. The respondent then filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of an arbitrator. That application was allowed and BSNL preferred an appeal to the Supreme Court. In the above conspectus of facts, the observations of the Supreme Court in paragraphs 39 to 41 of the judgment are relevant to the present lis. These observations are :
39. In the absence of a finding in regard to arbitrariness, bias or mala fides in the decision but only a mere error in assessment, the High Court ought not to have interfered in the tender process. In fact, it did not set aside the contract awarded to NICCO. But the High Court chose to issue a direction for reassessment of the vendor rating and if the respondent was found to have V-I rating, then place a purchase order for the quantity that remained over after all the purchase orders. This was unobjectionable as a public law remedy.
40. Having done so, there was no justification for the High Court to make any observation regarding compensation, as that was impermissible on the facts and circumstances, either in public law or private law. In fact, it was not based on any prayer. That unwarranted observation while disposing of the first writ petition, though it did not cast any liability on BSNL, was sufficient to persuade the designate of the Chief Justice while exercising jurisdiction under Section 11 of the Act to assume that the High Court in the order dated 29-4-2004 had ordered the respondent to pursue the remedy against the appellant for compensation/damages and therefore, an arbitrator should be appointed to decide the claim.
41. Instances abound where observations of the court reserving liberty to a litigant to further litigate have been misused by litigants to pursue remedies which were wholly barred by time or to revive stale claims or create rights or remedies where there were none. It is needless to say that courts should take care to ensure that reservation of liberty is made only where it is necessary, such reservation should always be subject to a remedy being available in law, and subject to remedy being sought in accordance with law. (emphasis is added).
As noticed earlier, Sri Ali in the earlier round of litigation (in W.P.No.14439 of 2006) invited a judgment dismissing the writ petition on the ground of inappropriateness of a public law remedy for disputed claims of title to immoveable property. Sri Ali then preferred an appeal (W.A.No.887 of 2006) which considered the claims on merits and rejected the same (already adverted to briefly, earlier in this judgment). He thereafter preferred an appeal to the Supreme Court. There he withdrew the writ petition itself and also sought setting aside of the judgments in the writ petition and in writ appeal, seeking liberty to pursue “appropriate remedy”. The Supreme Court granted this relief. The writ petition (W.P.No.10084 of 2006) filed by Sri Ali was for substantially similar reliefs as the later (W.P.No.14439 of 2006); and what is more the pleadings in support of the claims in this writ petition are also substantially similar (to those in W.P.No.14439 of 2006).
In the light of the above facts and circumstances: the substantial similarity of the two writ petitions (W.P.No.10084 of 2006 and 14439 of 2006); the conduct of Sri Ali in having withdrawn the writ petition while obtaining effacement of the elaborate and painstaking judgment in the writ appeal, without determination of the merits of that judgment by the Supreme Court; and then pursuing W.P.No.10084 of 2006 (a writ petition filed earlier to W.P.No.14439 of 2006), constitutes in our considered view an abuse of the process of law; wanton litigative behaviour, pejorative to the larger public interest, involving casual and reckless commandeering of scarce judicial time. In the light of the observations of the Supreme Court in BSNL, Sri K.S.B. Ali must be held disentitled to pursue remedies under Article 226 of the Constitution in respect of the grievances presented in his earlier writ petition (W.P.No.14439 of 2006 and W.A.No.887 of 2006). We hold accordingly.
Whether the impugned memo is unsustainable for violation of principles of natural justice:
The learned single Judge invalidated the impugned memo on the singular ground that the rights accrued to petitioners under the orders dated 06-05-2004 and 31-07-2004 are rescinded thereby; and without notice or opportunity to them. Before we proceed to analyses of the issue regarding audi alteram partem violation, we will deal with a contention regarding unenforceability of the memos dated 06-05-2004 and 31-07-2004.
In the counter-affidavit (filed by the 4th respondent, the District Collector in W.P.No.3421 of 2008), pleads that the order dated 06-05-2004 was not communicated to the petitioner and was passed during the care-taker Government, just prior to announcement of results of the general elections to the State Legislative Assembly; the CLR vide D.O. letter dated 16-06-2004 notified the Government about the earlier rejection of the claims of K.S.B. Ali by the order dated 15-04-2002 and requested to re-consider the order dated 06-05-2004. However, by the memo dated 31-07-2004 implementation of the Muntakhab was reiterated but this was not communicated. By a memo dated 30-10-2004, the order in memo dated 06-05-2004 was kept in abeyance and thereafter the impugned memo was issued rescinding the memos dated 06-05-2004 and 31-07-2004 and upholding the initial order dated 15-04-2002. The counter-affidavit clearly asserts that as the memos dated 06-05-2004 and 31-07-2004 were not communicated to the petitioner (K.S.B. Ali); and that un-communicated orders neither confer nor create any rights and could be withdrawn without notice, since no rights flow from un-communicated orders. The 4th respondent states that it is not clear how the petitioner obtained copies of un-communicated orders.
It requires to be noticed that the initial order dated 15-02-2004 (rejecting the request of K.S.B. Ali for implementation of the Muntakhab and restoration of the schedule property); the memos dated 06-05-2004 and 31-07-2004 (directing implementation of the Muntakhab), are all issued under the hand and signature of the Principal Secretary to the Government; and the impugned Memo is by the Special Chief Secretary. None of these orders/communications are expressed to have been issued by order or in the name of the Governor of Andhra Pradesh, as mandated by Article 166(1) of the Constitution. Are any one or all these instruments/ orders/decisions in exercise of the Executive power of the State? is therefore a relevant issue.
Article 166(1) enjoins that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. As pointed in Dattatreya Mareshwar Pangarkar v. State of Bombay(AIR 1952 SC 181), the mandate of the provision applies to cases where executive action is required to be expressed in the shape of a formal order or notification or any other instrument. John v. State of T.C.(1955) 1 SCR 1011), ruled that the mandate of Article 166(1) is also applicable to orders embodying a quasi-judicial decision taken by the Government, such as an order under Article 311(2).
The learned Attorney-General referred to MRF Ltd. v. Manohar Parrikar and others (Vol IX (2010) SLT 580)to buttress the contention that orders dated 06-05-2004 and 31-07-2004 cannot be treated to be decisions of the State Government since these orders are not in conformity with the mandate of Articles 154 and 166 of the Constitution.
The MRF facts and the ratio:
In MRF, the Government of Goa initially issued a notification dated 30-09-1991 granting rebate of 25% in electricity tariff in respect of certain categories of electricity consumers. This notification was issued in the name of the Governor of the State as per the relevant rules of authentication and following the procedure prescribed by the Business Rules framed under Article 166(3). Thereafter, by a duly issued notification dated 31-03-1995, the earlier notification dated 30-09-1991 was rescinded. Thereafter, by two notifications dated 15-05-1996 and 01-08-1996, the 25% rebate which was initially granted was restored. The subsequent notifications dated 15-05-1996 and 01-08-1996 were challenged inter alia on the ground that these transgressed the mandate of Articles 154 and 166 and the Business Rules of the Government framed under Article 166(3). The High Court held that the impugned notifications cannot be considered to be notifications issued by the State Government, on account of non-compliance with the Rules of Business and are therefore non est and consequently actions based on these notifications, are null and void. In appeals preferred by the aggrieved electricity consumer industries’ and others, the Supreme Court held :
62. Before the High Court as also before us it was contended by the appellants herein, that, the Rules framed under Article 166(3) are only directory in character and failure to comply with them does not vitiate the decision taken by the State Government. The High Court after considering the various judgments cited before it has repelled the said contention to hold that the said Rules are mandatory and non-compliance thereof would be disastrous. The reasoning adopted by the High Court to arrive at such a conclusion is sound and in accordance with the constitutional mandate. The decisions of the State Government have to be in conformity with the mandate of Articles 154 and 166 of the Constitution as also the Rules framed thereunder as otherwise such decision would not have the form of a Government decision and will be a nullity. The Rules of Business framed under Article 166(3) of the Constitution are for convenient transaction of the business of the Government and the said business has to be transacted in a just and fit manner in keeping with the said Business Rules and as per the requirement of Article 154 of the Constitution. Therefore, if the Council of Ministers or Chief Minister has not been a party to a decision taken by an individual Minister, that decision cannot be the decision of the State Government and it would be non est and void ab initio. This conclusion draws support from the judgment of this Court in the case of Haridwar Singh v. Bagun Sambrui and Ors., (1973) 3 SCC 889. This Court in the said case was dealing with the Business Rules of the State of Bihar framed under Article 166(3) of the Constitution of India and the observations of this Court on the issue apply to the case on hand in all force. This Court observed :
“14. Where a prescription relates to performance of a public duty and invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed.
15. Where however, a power of authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority.
16. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The Cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the Department originating the proposal of the power to take further action in it, the only conclusion possible is that prior consultation is an essential prerequisite to the exercise of power.”
63. As observed by us earlier, these observations apply equally to the case on hand and in light of this view; we have no difficulty in holding that the Business Rules framed under the Provisions of Article 166(3) of the Constitution are mandatory and must be strictly adhered. Any decision by the Government in breach of these Rules will be a nullity in the eyes of law.
Earlier in Bachhittar Singh v. State of Punjab and another(AIR 1963 SC 395), a Constitution Bench of the Supreme Court considered the scope of Article 166. The relevant facts of this case require to be noticed, for a feel of the context. The appellant was dismissed from service pursuant to an enquiry held by the Revenue Secretary of the then Pepsu Government, in August, 1956. This order was communicated to the appellant. He preferred an appeal to the Government and submitted an advance copy of the appeal, to the Revenue Minister. The Revenue Minister noted on the file that though the charges against the appellant were serious, proved and required to be dealt with sternly; since the appellant was a refugee and had a large family to support, dismissal from service was harsh; he be reverted to his original post; and administered a warning. This noting was however not communicated to the appellant. A day after this noting, the State of Pepsu merged in the State of Punjab. After merger, the file pertaining to the appellant’s departmental inquiry was processed. Eventually the Chief Minister passed an order sustaining the order of dismissal from service. This order was communicated. It was contended before the Supreme Court that since the Revenue Minister of Pepsu had reduced the punishment from dismissal to reversion, the Chief Minister of Punjab could not sit in review over that order and set it aside. As part of this contention it was urged that the order of the Revenue Minister of Pepsu was the order of the State Government and was not susceptible to review and the Chief Minister of Punjab had no competence to deal with the matter as it pertained to the port-folio of the Revenue Minister. The Supreme Court in the circumstances had occasion to consider whether an un-communicated administrative order is operative and further if not authenticated in the manner mandated by Article 166, would amount to an order of the State Government. Mudholkar, J, delivered the judgment for the Constitution Bench. The Court held that an order has to be communicated to the person who would be affected by that order, before the State and that person can be bound by such order; until the order is communicated to the person affected by it, it would be open to consider the matter over and over again; and till its communication the order cannot be regarded as anything more than provisional in character. On the other aspect as to when an order can be said to be an order of the Government in view of the provisions of Article 166 of the Constitution, the Supreme Court observed :
(8) What we have now to consider is the effect of the note recorded by the Revenue Minister of Pepsu upon the file. We will assume for the purpose of this case that it is an order. Even so, the question is whether it can be regarded as the order of the State Government which alone, as admitted by the appellant, was competent to hear and decide an appeal from the order of the Revenue Secretary. Article 166(1) of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor. Clause (2) of Art.166 provides for the authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business. What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor. But with that point we shall deal later. What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government, i.e., of the Governor. In this connection we may refer to R.25 of the Rules of Business of the Government of Pepsu which reads thus :
“Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be sent to the Rajpramukh and the Chief Minister.” According to learned counsel for the appellant his appeal pertains to the department which was in charge of the Revenue Minister and, therefore, he could deal with it. His decision and order would, according to him, be the decision and order of the State Government. On behalf of the State reliance was, however, placed on R.34 which required certain classes of cases to be submitted to the Rajpramukh and the Chief Minister before the issue of orders. But it was conceded during the course of the argument that a case of the kind before us does not fall within that rule. No other provision bearing on the point having been brought to our notice we would, therefore, hold that the Revenue Minister could make an order on behalf of the State Government.
(9) The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. (1) of Art.166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
(10) The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. (emphasis is added)
In Shanti Sports Club and Another v. Union of India and Others (2009) 15 SCC 705), the Supreme Court after detailed analyses of several precedents reiterated the principle that notings recorded in official files by officers of the Government at different levels even of Ministers, do not become decisions of the Government unless the same are sanctified and acted upon by issuing an order in the name of the President or the Governor as the case may be, authenticated in the manner provided in Articles 77(2) and 166(2); and communicated to effected persons. Such notings or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a Court nor made the basis for seeking relief. The Court further held that even if the competent authority records a noting in the file which indicates that some decision has been taken by the authority concerned, the same can always be reviewed by the same authority or reversed or over-turned or over-ruled by a higher functionary/authority in the Government.
Shanti Sports Club : Relevant facts and ratio:
The facts in Shanti Sports Club illumine and elucidate the principle. The relevant facts in brief are noticed. The schedule property was acquired by Union of India for the planned development of Delhi. Acquisition proceedings (in respect of the schedule property) were initiated by a notification dated 21.03.1965, issued under Section 4(1) of the Land Acquisition Act, 1984 (the ‘Act’). An award was passed on 22.12.1980. After issue of the notification under Section 4(1) and during pendency of proceedings initiated by the owners challenging the notification, the property was transferred in favour of the appellants who constructed a large complex over the acquired land even without applying to the competent authority for sanction of the building plan. The writ petition by the owners challenging the acquisition was eventually dismissed. In 1993, the appellants filed a writ petition for a Mandamus to the Central Government to release the land under Section 48(1) of the Act. Before, during and after filing of the writ petition in 1993 suits seeking injunctive reliefs were also filed. The 1993 writ petition filed by the appellants was dismissed, however with an observation that the appellants are at liberty to represent to the authorities for release of the land. The appellants thereupon represented to the Union and the DDA for release of the land under Section 48(1) of the Act. The then Minister for Urban Development on 08.06.1999 recorded in the note file that extensive construction had taken place, presumably with the full co-operation of public servants concerned, no demolition can or would be ordered; suitable terms of regularization be settled by negotiations, but the decision is left open. Subsequently, the successor Minister in the Urban Development Department decided that the property in issue cannot be released since development was made after completion of acquisition proceedings and passing of the award. This decision, dated 14.07.1999 was communicated to the appellants vide letter date 09.06.2000. The appellants challenged the decision dated 09.06.2000 inter alia on the ground that on 08.06.1999 the Minister for Urban Development had already taken a final decision for de-notification and regularisation of the property (in favour of the appellants) and that decision could not be over-turned; that the later decision is devoid of reasons, failed to take into account extensive developments made on the property and similar representations by others were entertained and accepted by the Government.
In the above broad conspectus of facts the Court had occasion to consider whether the decision recorded by the Minister in the note file on 08.06.1999 constituted an order of the Government in view of the provisions of Article 166. The Supreme Court following the Constitution Bench decision in Bachhittar Singh and quoting with approval the observations in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34), restated the applicable principles and ruled :
52. As a result of the above discussion, we hold that the notings recorded in the official files by the officers of the Government at different levels and even the Ministers do not become decisions of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may be, authenticated in the manner provided in Articles 77(2) and 166(2) and is communicated to the affected persons. The notings and/or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a court nor made basis for seeking relief.
Other curial authority on Art. 77 and 166:
There are several binding decisions which have considered the scope of Articles 77 and 166. At a first glance, the several decisions do not portray an impression of a linear and uniform principle on whether non-compliance with the requirement of expression or authentication of Executive action, in the name of the President or the Governor of a State, as the case may be, is fatal to effectuation of such action, as Executive action of the State.
The normative principle that emerges is: Executive action (which includes judicial or quasi-judicial action, whereby the Executive Branch) on the part of the State must be taken in terms of the constitutional Scheme; i.e., in compliance with the requirements of Article 162 read with Article 166. Where actions or directions are not shown to have been issued pursuant to any decision taken by a competent authority in terms of the Rules of Executive Business of the State framed under Article 166 (3) of the Constitution, such decisions or actions are not valid. On the other hand merely on account of the fact that an Executive action is not formally expressed in the name of the Governor, the State may not contend that it is not binding on it nor can be allowed to resile from that decision, so long as the same is not properly withdrawn or rescinded by another order vide – State of U.P. v. Neeraj Awasthi (2006) 1 SCC 667); Punit Rai v. Dinesh Chaudhary (2003) 8 SCC 204); Dwaraka Nath Tewari v. State of Bihar (AIR 1959 SC 249)and State of Bihar v. Bihar Rajya M.S.E.S.K.K. Maha Sangh (2005) 9 SCC 129).
Earlier to Dattatreya Moreshwar Pangarkar, in J.K. Gas Plant Manufacturing Company (Rampur) Ltd., and others v. The King Emperor (1947 FCR 141),the Federal Court considered the scope of the provisions of Section 40 (1) of the Government of India Act, 1915 (substantially similar to Articles 77 and 166 of the Constitution). The Federal Court held that the provision requiring expression or authentication in the name of the President or the Governor as the case may be, for Executive action, is directory; not mandatory.
This principle was followed by the Constitution Bench in Dattatreya Moreshwar Pangarkar, which observed that while strict compliance with the requirement of Article 166 provides immunity to the order and cannot be challenged on the ground that it is not an order made by the Governor; if the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however does not vitiate the order itself and it is open to the Government to establish from the record or by an affidavit that the order in fact is an order of the Government.
Another Constitution Bench in R. Chitralekha and another v. State of Mysore and others (AIR 1964 SC 1823 (1)revisited this aspect and considered the earlier judgments including Bachhittar Singh. The majority opinion by Subba Rao, J (as his Lordship then was) reiterated the principle set out in Dattatreya Moreshwar Pangarkar and distinguished Bachhittar Singh by stating that in the later decision since the order signed by the Revenue Minister was not communicated to the party it was held that there was no effective order. The Court also noted that in the counter affidavit filed by the Deputy Secretary to the Government of Mysore there is a clear averment that the Government gave the direction and a letter was also issued to the Selection Committee; and since there was no assertion that the order was not made by the Government, there was no reason to reject the averment by the Deputy Secretary to the Government, that the order was in fact issued by the Government.
In State of Kerala v. Smt. A. Lakshmikutty and others (1986) 4 SCC 632), a briefing by the Chief Minister to the Press regarding a Cabinet meeting dated 31-01-1985 (inter alia to the effect that the Government decided to fill up four posts of District Judges from the panel of names recommended by the High Court and to keep one post vacant since there was a pending writ petition), was asserted to be an order of the State Government. Rejecting this contention the Supreme Court observed that whatever the Council of Ministers may say in regard to a particular matter, does not become the action of the State Government till the advice of the Council of Ministers is accepted by the Head of the State. Before an advice of the Council of Ministers amounts to an order of the State Government, there are two requirements to be fulfilled viz., (a) the order of the State Government has to be expressed in the name of the Governor as required by Article 166 (1) and (2); and (b) it has to be communicated to the persons concerned. The Court held that the earlier decision of the Council of Ministers was only tentative and did not constitute an order of the State Government.
In Kripalu Shankar (1987) 3 SCC 34), after referring to the decision in Bachhittar Singh the Court reiterated that notings in a note file not only of officers but even of a Minister would not constitute an order which could affect others unless it is made in accordance with Article 166 (1) and (2).
In Rajasthan Housing Board and ors. v. Shri Kishan and Ors. (1993) 2 SCC 84), one of the questions that fell for consideration is whether the decision (to de-notify acquisition) approved by the Minister concerned and by the Chief Minister, followed by a letter addressed by the Deputy Secretary to the Government to the Secretary, Rajasthan Housing Board, Jaipur with a copy marked to the concerned institution (whose land was acquired and had vested in the State by appropriate proceedings under the Land Acquisition Act) constituted a decision by the State. It so happened that on a subsequent change of government represented by a different political party, the Secretary of the concerned department ordered stoppage of issuance of notification for de-acquisition of the land of the petitioner-society. The Supreme Court held that the earlier decision was only tentative and in the absence of a notification for de-acquisition it was only a case of a tentative decision being reversed since there was no communication of any final decision in the matter.
In J.P. Bansal v. State of Rajasthan and another (AIR 2003 SC 1405)the issue was whether a decision of the Cabinet was per se enforceable. The petitioner had unsuccessfully claimed salary for the balance tenure which was prematurely terminated on the basis of a cabinet decision in this behalf, before the High Court. This claim was resisted by the State on the ground that the decision of the Cabinet would not partake the character of a Government order under Article 166. The Supreme Court rejected this aspect of the plea of the petitioner-appellant. The apex Court observed that while the disputed question as to whether there was any Cabinet decision, as pleaded by the petitioner need not be gone into since it was not established that there was any Government order in terms of Article 166 of the Constitution, the contention must be rejected. The Court observed that the Council of Ministers are advisors; the Head of the State, the Governor must act on the aid or advice of the Council of Ministers; but till an advice is accepted by the Governor, the views of the Council of Ministers do not get crystallized into action of the State.
In Sethi Auto Service Station and Anr. v. Delhi Development Authority and Ors.(2009) 1 SCC 180), the Court held that notings in a departmental file do not have the sanction of law to be an effective order; noting by an officer is an expression of his view point on the subject; is no more than an opinion by an officer for internal use and consideration of other officials of the department and for the benefit of the final decision-making authority; notings in the file culminate into an executable order affecting the rights of the parties, only when it reaches the final decision-making authority in the department; gets his approval and the final order is communicated to the person concerned.
In Goa Glass Fibre Ltd., v. State of Goa and Anr. (2010) 6 SCC 499) a peculiar factual context fell for consideration. Validity of the Goa (Prohibition of Further Payment and Recovery of Rebate Benefits) Act, 2002 was challenged on several grounds. The impugned Act had inter alia declared two notifications dated 15-05-1996 and 01-08-1996 issued by and on behalf of the Government as illegal and unauthorized and prohibited any further payments there under. In defense to the challenge to the provisions of the Act insofar as the declaration of nullity of the notifications is concerned, the State contended that the notifications were not authorized by law as the Council of Ministers had rescinded the notification, but the Power Minister had however issued the notifications on his own without reference either to the Chief Minister or Council of Ministers or consulting the Finance Department as mandatorily required under the Rules of Business. On an analysis of the relevant facts and duly noting the Cabinet rejection of the proposal for issuance of the notifications and the fact that there was no financial sanction nor budgetary provision nor even a Cabinet approval as required under the Rules of Business framed under Article 166 (3), the Court upheld the legislation as made in larger public interest.
In State of Uttaranchal and Anr v. Sunil Kumar Vaish and Ors. (2011) 8 SCC 670) an inter-departmental communication addressed by the District Magistrate, Haridwar to the Secretary, Government of Uttar Pradesh recommending payment of compensation, was claimed to be an order of the State. The Government of Uttar Pradesh had rejected the recommendations of the District Magistrate. The High Court however considered recommendations of the District Magistrate as constituting an order of the State Government and granted relief to the petitioner. The Supreme Court while reiterating that an executive action of the Government is required to be taken in the name of the President or the Governor of a State concerned, as the case may be [Articles 77 (1) and 166 (1)], held further that orders and other instruments made and executed in the name of the President or the Governor of a State are required to be authenticated in the manner specified in rules made by the President or the Governor [Articles 77 (2) and 166 (2)]; and unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order by or on behalf of the Government. The Court further observed that even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot construed to be a decision of the Government, unless sanctified and acted upon by issuing an order in accordance with Article 77 (1) and (2) or Article 166 (1) and (2); that notings in the file or even a decision culminates into an order affecting rights of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and is authenticated in the manner provided in Article 77 (2) or Article 166 (2); that a noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned; and the Court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
Back to this lis on Board:
Neither have the writ petitioners nor the official respondents pleaded anything nor placed any material before us, including the Rules made by the Governor under Article 166 (2) of the Constitution relating to authentication of orders and other instruments, made and executed in the name of the Governor; or the Rules of Business made under Article 166 (3), to facilitate a reasonable by us; as to whether the several instruments (dated 15-04-2002; 06-05-2004 and 31-07-2004 and the impugned Memo dated 21-05-2005) though not expressed in the name of the Governor of the State or authenticated in the manner mandated by Article 166 and the Rules made thereunder, are nevertheless orders of the Government.
The 4th respondent’s counter (in W.P.No. 3421 of 2008) assumes all the above to be Government orders (after all they are orders signed by the Principal Secretary or by the Special Chief Secretary!) but justifies the impugned memo on the ground that the earlier orders dated 06-05-2004 and 31-07-2004 were not communicated to the representationist Sri Ali. In paragraph No.23 of this counter there is an assertion by the 4th respondent that the memo dated 06-05-2004 was issued during the caretaker government and just before announcement of results of general elections to the State Legislative Assembly. Whether this averment is suggestive of the fact that the memo dated 06-05-2004 is not an order of the State Government, is however not clear.
In view of the latter decisions of the Supreme Court in Shanti Sports Club and Anr v. Union of India (UOI) and Ors. (2009) 15 SCC 705) and Sunil Kumar Vaish (supra) reiterating the earlier Constitution Bench decision in Bachhittar Singh (supra); in the absence of anything on record to legitimize the inference that the several decisions were by duly authorized levels of authority as per the Business Rules issued by the Governor; and in view of violation of the mandate of Article 166 (1) on the aspect of expression and authentication of Executive decisions/orders, we are compelled to conclude that none of the orders/decisions/instruments constitute Executive actions of the State of Andhra Pradesh.
As we have noticed earlier, the initial order dated 15.04.2002 rejecting the representation of Sri K.S.B. Ali (for restoration of possession of the schedule property as per the Muntakhab) is not authenticated in the manner mandated by Article 166 of the Constitution though is marked for communication to the representationist Ali. Be that as it may. The singularly laconic and unreasoned decision set out in the memo dated 06.05.2004 (recording a decision to implement the Muntakhab) is neither authenticated as mandated by Article 166 nor even marked for communication to the representationist Ali. That it was not communicated to Sri Ali is specifically asserted by the Government (in its counter) and not denied by the writ petitioners, in particular Sri Ali. Another memo dated 31.07.2004, endeavoring to furnish reasons for the decision in the memo dated 06.05.2004, is also by the Principal Secretary to the Government but not authenticated as mandated by Article 166. The impugned Memo is by the Special Chief Secretary to the Government and has also neither been authenticated (as mandated by Article 166) nor even marked for communication to any of the writ petitioners including Sri K.S.B. Ali. That the impugned Memo has not been communicated to Sri Ali is asserted by the State and has not been established or even pleaded otherwise, by the writ petitioners, including Sri Ali.
The categorical assertion in the counter-affidavit of the District Collector that the orders dated 06-05-2004 and 31-07-2004 were not communicated to the petitioners has not been categorically controverted, either in the reply affidavit dated 10-04-2008 nor in the additional reply affidavit dated 03-03-2009 filed by Malik Sultana (the 1st petitioner in W.P.No.3421 of 2008).
On analyses of the afore-mentioned instruments considered in the light of binding precedents referred to supra, the conclusion is compelling; that while none of the memos (dated 15.04.2002, 06.05.2004, 31.07.2004 or 21.05.2005) could lawfully be considered as constituting Executive decisions/orders of the Government of Andhra Pradesh (since they are not authenticated in the manner mandated by Article 166 of the Constitution); the letter dated 06.05.2004 and the memo dated 31.07.2004 are in any event inoperable and in executable, create no rights nor could be relied upon since these were not communicated to the representationist Ali. Mere informal procurement of these instruments by Sri Ali or others, without formal communication by the Government or the author would not infuse them with constitutive force nor legitimize their enforcement. All these instruments, in law and on a true and fair construction of their contents amount merely to internal notings by the State bureaucracy; and have no constitutive force or operative efficacy, as Executive orders of the State. On the authority of Sodhi Sukhdev Singh; Bachittar Singh; Chitralekha; A. Laxmikutty; Kripalu Shankar; and Sethi Auto Works, an uncommunicated administrative order is inoperative and inexecutable; and until formal communication is available for locus penitentii.
Since we have earlier concluded that there is no power or authority consecrated to the Executive branch of the State to adjudicate upon competing claims of the State on the one hand and the alleged legal heirs of Nusrat Jung – I, on the other (with regard to the schedule property); and in the absence of any expression in the several orders invoking the Office or the authority of the Governor of Andhra Pradesh, we are compelled to infer that these orders are merely indicative of the shifting opinions of different Principal Secretaries and the Special Chief Secretary to the Government in the Revenue Department, as regards the meaning, vitality and executability of the Muntakhab. In any event, as none of the orders have the legal authority either of constitutive or deprivative disposition qua the claims and rights of the contesting parties, in our considered view nothing significant turns upon the aspect whether the orders emanate from the Government or are mere opinions of the bureaucracy, i.e., not in exercise of the Executive power of the State qua Article 154 r/w Article 166 of the Constitution.
Who are the writ petitioners?
There is another significant but piquant and incomprehensible circumstance in this lis. The initial order dated 15-04-2002, the subsequent orders dated 06-05-2004 and 31-07-2004 and the impugned memo, all flow out of representations made by K.S.B. Ali claiming to be the sole representative of the legal heirs of Nusrat Jung – I.
The letter dated 15-04-2002 refers to W.P.No.20298 of 1993 filed by Mirza Agha Mohammed Ali and 169 others (seeking implementation of the Muntakhab). These petitioners claimed to be the successors-in-interest of Nusrat Jung – I. By the judgment dated 09-07-2001, this Court declined to go into the details of the case and directed the Government to consider the report of the CLR and take further action in accordance with law. The letter dated 15-04-2002 also refers to a representation dated 04-08-2001 by Moizuddin Mahamood (also the petitioner in W.P.No.22619 of 2007); and another from K.S.B. Ali, claiming to be the sole representative of the legal heirs of Nusrat Jung – I. Qua this letter (dated 15-04-2002) the representation of K.S.B. Ali was rejected. The memo dated 06-05-2004 was issued on the basis of a representation dated 06-01-2003 and further representations, only by K.S.B. Ali claiming to be the sole representative of the legal heirs, seeking implementation of the Muntakhab and reconsideration of the order dated 15-04-2002. The basis for the memo dated 31-07-2004 is the same as it is for the memo dated 06-05-2004, i.e., representations by K.S.B. Ali. It is equally not clear by what authority K.S.B. Ali claimed or continues to claim, to represent all the legal heirs of Nusrat Jung – I; and if he is a lawfully authorized representative, whether the 170 petitioners (in W.P.No.20298 of 1993) are persons who additionally claim to be the heirs or these petitioners are renegade legal heirs who have dis-associated from K.S.B. Ali. Neither a power of attorney nor an authorisation signed by persons asserting to be legal heirs of Nusrat Jung – I nor the names and particulars of the legal heirs whose representative Sri K.S.B. Ali claims to be nor even the legal basis for the claim to be their representative, is on record.
We have earlier in the narrative herein noticed that the 1st defendant in O.S.No.512 of 1973 was one J.H. Krishna Murthy, who in his written statement therein claimed to be the GPA of the heirs of late Nusrat Jung – I. In that capacity he had also though unsuccessfully preferred the appeal C.C.C.A.No.142 of 1976. When Sri K.S.B. Ali supplanted J.H. Krishna Murthy, as the authorized legal representative of the heirs and by what authority, is neither pleaded nor clarified.
W.P.No.9551 of 2004 was also by K.S.B. Ali claiming to be the sole representative of the heirs of Nusrat Jung – I. The grievance in this writ petition was non-communication of the memo dated 06-05-2004 to the District Collector and MRO and for implementation of the order of the Atiyat Court. This writ petition was disposed of at the admission stage directing communication of the memo dated 06-05-2004 to respondents 2 to 4 therein. Sri Ali did not plead in this writ petition that the Memo dated 06-05-2004 was communicated to him.
W.P.No.14439 of 2006 was again by K.S.B. Ali alone claiming that he and a large number of (203) persons are the legal heirs of Nusrat Jung – I. The proposals for sale of 100 acres in Kokapet village by the HUDA was challenged in this writ petition and title to the said extent as part of the schedule property was claimed by the petitioner K.S.B. Ali, as the sole representative of the legal heirs of Nusrat Jung – I. On what basis Ali claimed to be the heir of Nusrat Jung – I and/or to be authorized to represent all the legal heirs is not clear. No foundational facts are pleaded nor any material furnished to infer with certitude the claim of Sri Ali to represent the legal heirs of Nusrat Jung – I or the claims of the other writ petitioners to being the legal heirs (of Nusrat Jung – I) and hence to having a litigable interest in the schedule property. Against the dismissal of this writ petition (with liberty granted) to pursue declaratory and injunctory reliefs before the Civil Court, K.S.B.Ali preferred writ appeal No.886 of 2006. The appeal was dismissed by the judgment dated 26-10-2007. K.S.B. Ali appealed to the Supreme Court by Special Leave, pleaded for withdrawal of W.P.No.14439 of 2006. By the Order of the Supreme Court, dated 13-12-2007, the judgments in W.A.No.887 of 2006 and W.P.No.14439 of 2006 were set aside and writ petition dismissed as withdrawn; the issues were left open and the appellant Ali was preserved the liberty “to take appropriate remedy”.
Coming to the several writ petitions and the common judgment therein (wherefrom the present appeals arise), as already noticed, W.P.No.10084 of 2006 is again by K.S.B.Ali, claiming to represent 203 legal heirs of Nusrat Jung – I. W.P.No.22619 of 2007 is by the sole petitioner Moizuddin Mahamood, one of the representationists referred to in the order dated 15-04-2002. It does not appear that the memos dated 06-05-2004 and 31-07-2004 were issued on the basis of the representations by this gentleman – Moizuddin Mahamood. W.P.No.3421 of 2008 is by Malik Sultana and 21 others; W.P.No.7747 of 2008 is by Ghouse Mohiuddin Siddiqui; W.P.No.8761 of 2008 is by 13 petitioners; W.P.No.12928 of 2008 is by 9 petitioners; W.P.No.3750 of 2009 is by 117 petitioners; and W.P.No.6425 of 2009 by 20 petitioners. If K.S.B.Ali is the sole representative of all the legal heirs of Nusrat Jung – I, it is not clear who the other writ petitioners are or on what basis they claim to be so. Except K.S.B. Ali and Moizuddin Mahamood and the writ petition filed by Mirza Agha Mohammed Ali and 169 others, there is no reference to any other claimants to the schedule property even in the letter dated 5-04-2002, whereby the representation of K.S.B.Ali was rejected. The subsequent memos dated 06-05-2004 and 31-07-2004 directing implementation of the Muntakhab were issued only on the basis of K.S.B. Ali’s representation and these orders rescinded by the impugned memo dated 21-05-2005. Neither the 170 petitioners (whose W.P.No.20298 of 1993 was referred to in the letter dated 15-04-2002) or Moizuddin Mahamood whose representation dated 04-08-2001 was also referred to in this letter (rejecting K.S.B.Ali’s representation for implementation of the Muntakhab and restoration of possession of the schedule property), have ever challenged the decision dated 15-04-2002. Neither did Sri K.S.B. Ali.
Since neither the memos dated 06-05-2004 and 31-07-2004 nor the re-calling of the orders in these memos by the impugned memo dated 21-05-2005 is at the instance of any other person except K.S.B. Ali, none of the other petitioners could legitimately assert a grievance that the impugned memo was issued without notice or opportunity to them and on the ground that any rights accrued to them under the memos dated 06-05-2004 and 31-07-2004 were extinguished by the impugned memo.
In the chaotic and incoherent state of facts adverted to above and absent any clarity as to whether K.S.B.Ali and/or the writ petitioners are the legal heirs of Nusrat Jung – I or lawfully authorized to represent any legal heirs; and since the writ petitions are founded on the assertion that the reliefs claimed are on the basis that the several petitioners (being successors-in-interest of Nusrat Jung – I) are entitled to restoration of possession of the schedule property; we do not consider it prudent or pragmatic that reliefs should have been granted to petitioners who have failed to plead and establish any litigative interest in the subject matter of the writ petitions; and therefore to a locus to litigate.
Coming to the aspect whether the impugned memo is vitiated on account of the failure to issue notice to the petitioners, as held in the judgment under appeal; it is to be noticed that it is the specific case pleaded in defense, on behalf of the official respondents (by the District Collector in his counter) that the memos dated 06-05-2004 and 31-07-2004 are not communicated to the representationist K.S.B.Ali. It is axiomatic that an uncommunicated administrative order is ineffective proprio vigore and unenforceable. The burden is therefore upon K.S.B.Ali to establish that these orders were communicated to him. There is nothing on record, either pleaded or established, that legitimizes an inference/conclusion that the orders dated 06-05-2004 and 31-07-2004 were formally communicated either to Sri Ali or the other petitioners. That being so, the impugned memo rescinding the orders dated 06-05-2004 and 31-07-2004 even though without notice or opportunity, would not affect the vitality of the impugned memo, on this limited account.
The writ petitioners (other than K.S.B.Ali), cannot claim violation of the audi alteram partem principle in issuance of the impugned memo since the memos dated 06-05-2004 and 31-07-2004 were issued only pursuant to and on the basis of representations of K.S.B.Ali. We cannot also be oblivious of the fact that even the earlier order dated 15-04-2002 was on the basis of K.S.B.Ali’s representation and had rejected the same. Insofar as the K.S.B.Ali is concerned, the memos dated 06-05-2004 and 31-07-2004 cannot be considered operative in the absence of formal communication of these orders to the representationist K.S.B. Ali. Consequently, the impugned memo constitutes a mere decision to withdraw the earlier uncommunicated and therefore inoperative bureaucratic notings dated 06-05-2004 and 31-07-2004. On the aforesaid analyses, the finding in the judgment under appeal that the impugned memo is unsustainable on the singular ground of violation of principles of natural justice, cannot be sustained.
In Maneka Gandhi v. Union of India and Anr. (AIR 1978 SC 597) a Constitution Bench considered the scope and contours of the natural justice principle – audi alteram partem and after a detailed analyses of Indian and foreign precedents apart from academic opinion. The leading opinion was by Bhagawati,J (jointly with Untiwalia and Murtaza Fazal Ali, jj); the other four learned judges concurring. Several contours of the principle were explored and delineated. The operative conclusion was that even if the power to impound a passport is considered as administrative in character (the conclusion however being that the power is quasi judicial in nature), since it seriously interferes with the constitutional rights of the holder to go abroad and entails adverse civil consequences, a reasonable hearing preceding exercise of the power of impounding, is mandatory. The court further observed that where exigent circumstances exist for impounding a passport even without prior opportunity of hearing, a post-decisional opportunity must be held integral to the provisions of the Passport Act 1967 to render the provisions constitutionally appropriate. Maneka Gandhi quoted with approval the following observation of Lord Denning M.R. in Schmidt v. Secy. of State for Home Affairs (1969) 2 Ch. D. 149): Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf.
We have earlier held that even the earliest instrument dt. 15.4.2002 (rejecting the request for restoration of possession), is neither a decision nor an order drawn up in exercise of the Executive power of the State, in conformity with the provisions of Article 162 r/w 166 of the Constitution; a decision in exercise of any judicial or quasi judicial power inhering in the State, or in the signatory of this instrument (the Principal Secretary to Government) as a designated judicial or quasi judicial authority or a persona designata. The subsequent noting/decision contained in the memos dated 6.5.2004 and 31.7.2004 were not communicated to the representationist – Sri Ali. These instruments are also not orders of the State, for reasons recorded by us earlier herein.
The lynchpin of the case of the petitioners including Sri Ali (on whose sole representation the memos dated 6.5.2004 and 31.7.2004 were issued) is premised on these un-communicated memos not issued by or on behalf of the State.
The memo dt. 21.5.2005 (impugned in the writ petitions) was neither communicated; constitutes an order of the State issued in exercise of its executive power under the Constitution; nor is a determination qua consecration of Judicial or quasi – Judicial power to the State or any designated State officer, under any legislatively conferred adjudicatory dispensation.
In the above factual matrix, invalidating the impugned memo would neither revive nor operationalise the inherently sterile, unauthorised and in executable memos dated 6.5.2005 and 31.7.2004, in any event. Invalidating the impugned memo would resultantly be an exercise in futility.
Gadde Venkateswara Rao v. The Government of A.P. and Ors.(AIR 1966 SC 828); Mohd. Swalleh v. III ADJ(AIR 1988 SC 94); and Maharaja Chintamani Saran Nath Shahadeo v. State of Bihar and Ors.(1998) 8 SCC 16); M.C.Mehta v. Union of India (1990) 6 SCC 237); and Raj Kumar Soni and Anr. v. State of U.P. and Anr.(2007) 10 SCC 635), enunciate the principle that an incompetent order ought not to be invalidated where the effect of such invalidation would be to resuscitate an earlier but illegal order. The penumbral ratio of the above precedents is however apposite to our analysis on this aspect.
In the judgment under appeal, the learned single Judge observed that once the proceeding dated 15.04.2002 was withdrawn (vide another memo dated 06.05.2004 followed by the memo dated 31.07.2004) the earlier report of the Chief Commissioner dated 21.06.2001 stood revived and rights of considerable importance which had accrued to the petitioners could not be taken away without notice to the petitioners.
We have earlier noticed that every single proceeding, dated 15.04.2002; the memo dated 06.05.2004; the memo dated 31.07.2004; and the memo dated 21.05.2005 (impugned in the writ petitions), are communications or proceedings drawn up and signed either by the Principal Secretary to the Government or the Special Chief Secretary, as the case may be. We have also concluded that even the State Government is consecrated no adjudicatory power, jurisdiction or authority. There is also nothing pleaded or established before this Court to legitimize an inference that either the Principal Secretary to the Government or the Special Chief Secretary for that matter is consecrated any jurisdiction, either as a Court, Tribunal or persona designata. None of these instruments constitute decisions of the Government either, for reasons already recorded. It is not therefore permissible for any of the contesting parties in this lis either to challenge or rely upon any of these proceedings in support of any claims to or in defense of any rights qua the schedule property. The several instruments are also bereft of any probative value as constituting decisions of the Executive branch of the State.
The learned single Judge declined to go into the merits of the petitioners’ claim as to title to the schedule property and the claims for restoration of possession thereof, from the State. None of the writ petitioners have filed any appeal against the judgment. We are therefore not required to consider; whether even if the decisions/notings/instruments dated 15.4.2002; 6.5.2004, and 31.7.2004 and impugned memo dt. 21.5.2005 are sterile and in executable, the petitioners have title to the scheduled property or are entitled to restoration of possession thereof.
In any event examination/enquiry/adjudication into and regarding questions of title to the immovable property, involving recording and appreciation of evidence (oral and documentary) is normally inappropriate in writ proceedings, which is essentially summary in nature – vide: (Mahant) Moti Das v. S.P. Sahi(AIR 1959 SC 942); Thansingh Nathmal v. A. Mazid, Supt. of Tax(AIR 1964 SC 1419); Somnath Sahu v. State of Orissa (1969) 3 SCC 384);State of Rajasthan v. Bhavani Singh (AIR 1992 SC 1016); Mohan Pandey v. Usha Rani Rajgaria(AIR 1993 SC 1225); Union of India v. S.J. Thanawalla (1996) 8 SCC 469);and Dwarka Prasad Agarwal v. B.D.Agarwal(AIR 2003 SC 2686). Since the writ petitioners; some of the non-official respondents in the writ petitions; and some other respondents impleaded in the several writ appeals seek what are primarily declaratory and restitutive reliefs in respect of the schedule property in Kokapet Village – declaration of their title and restoration of possession, these reliefs are more appropriately presented before the Civil Court of competent jurisdiction, in accordance with law and subject to the bar of limitation periods, if any applicable.
On behalf of the writ petitioners several precedents were referred to support the contention that memos dated 6.5.2004 and 31.7.2004 constitute a recognition by the State of their title to the property; their entitlement to restoration of possession and constitute a promise of such restoration and therefore the impugned memo, to the extent it resiles from such recognition and promise, derogate the legitimate expectations and could not have been issued without notice or opportunity to them; and that the impugned memo transgresses the established principle of promissory estoppel. On behalf of the appellants several precedents are referred to counter the contention. In view of our conclusions that none of the decisions/ notings/ proceedings/ instruments, are orders issued in exercise of the executive power of the State; and the two memos were not communicated either, the contentions on behalf of the petitioners that the State had recognized their title; had promised restoration of possession; and that the impugned memo has belied their legitimate expectations without due process, do not merit consideration and acceptance. In the circumstances we do not consider it necessary to embark upon an idle parade of familiar authority, on this aspect of the matter.
Several of other contentions were urged with apparently supportive curial authority regarding the meaning of expressions mash, muntakhab, farman and khalsa; and several and competing contentions were put forth, on whether the schedule property is Inam, a jagir, a heritable estate etc. In the light of our analyses and conclusions above however, none of these competing contentions/claims require adjudication in the appeals and in the Writ Petition.
SUMMARY OF OUR CONCLUSIONS:
(a) Neither the State nor any Officer of the State, including the Principal Secretary or the Special Chief Secretary to the Government, Revenue Department is conferred judicial or quasi judicial jurisdiction, power or authority, either as Court, a Tribunal or a persona designata, to adjudicate disputed questions of title to immovable property, even where one of the competing claimants to such title is the State;
(b) Consequent on conclusion (a) supra, none of the instruments/decisions/orders dated 15-4-2002; 6-5-2004; 31-7-2004, or the impugned Memo dated 21-5-2005 (impugned in the writ petitions), could be considered as having efficacy or operative force as determinative or deprivatory of title in or entitlement to possession of immovable property of an extent of Ac.1635-34 guntas in Kokapet village of Ranga Reddy District, in favour of the State itself or any other private individual or individuals, including the writ petitioner and/or the non-official respondents in this batch of writ appeals;
(c) The decision/order in Memos dated 06-5-2004 and 31-7-2004 were not formally communicated to any of the writ petitioners including Sri K.S.B.Ali, the representationist at whose instance and on whose representation these Memos were issued;
(d) In the light of conclusion (c) above, the Memos dated 6-5-2004 and 31-7-2004, being uncommunicated administrative orders, are inoperative, inexecutable and sterile;
(e) The instruments/decisions/orders dated 15-4-2002; 6-5-2004; 31-7-2004 or the impugned Memo dated 21-5-2005 not having been expressed or authenticated in the manner ordained by Article 166 (1); or established to have been decisions taken at the specified level of authority, in accordance with the Rules of Business issued by the Governor of the State under Article 166 (2) and (3), cannot be regarded as orders issued by the State in exercise of its executive power under Article 162 of the Constitution;
(f) Consequent on conclusions (a) to (e) above, the impugned Memo dated 21-5-2005 is not susceptible to invalidation by this Court in exercise of its power of judicial review under Article 226 of the Constitution. Since the impugned Memo rescinds uncommunicated and inoperative Memos dated 6-5-2004 and 31-7-2004, violation of the audi alterem partem principle (even if applicable in the facts and circumstances of the case), is of no legal consequence and would not result in resuscitation of the unauthorized and sterile memos dated 6-5-2004 and 31-7-2004;
(g) Having withdrawn W.P.No.14434 of 2006 and obtained invalidation of the judgment in the said writ petition and in W.A.No.887 of 2006, in SLP (Civil) No. 23392 of 2007, by the order of the Hon’ble Supreme Court dated 31-7-2007, while obtaining permission “to take appropriate remedy”, Sri K.S.B.Ali is disentitled either to file another writ petition for the same relief as in W.P.No. 14434 of 2006 or to pursue the pending writ petition No. 10084 of 2006, as this would not be an appropriate remedy; and pursuit of public law remedy by Sri K.S.B.Ali, for substantially the same grievance as in the earlier abandoned proceedings constitutes an abuse of process of the Court; and
(h) Neither has Sri K.S.B.Ali established by specific pleadings nor by due authorization on record that he is authorized to represent the cause of 203 legal heirs of Nusrat Jung-I; nor have the other petitioners pleaded or established the basis for their claims, to be the heirs of Nusrat Jung-I.
In view of the foregoing analyses, for the afore-stated reasons and in the light of our conclusions supra, the common judgment dated 02.06.2009 in W.P.Nos.10084 of 2006; 22619 of 2007; 3421, 7747, 8761 and 12928 of 2008; 3750 and 6425 of 2009 is set aside and the several writ appeals are allowed, with costs; and for reasons alike W.P.No.29063 of 2009 is dismissed and with costs.