1. This writ petition is filed by the Anand Parbhat Co-operative Housing Society Limited, represented by its President, S. Akthar Ahsan, petitioner herein (for short the "Society") seeking a declaration that LGC No. 167 of 1999 filed by the State of Andhra Pradesh, represented by the Special Deputy Collector (Land Protection), Hyderabad, 2nd respondent (for short the "Government") against the petitioner on the file of the Special Court under A.P. Land Grabbing (Probition) Act, (for short the "Special Court") 1st respondent herein in respect of Ac.7-29 gts. of land in Sy.No.403/P (129/11 Paiki), Shaikpet Village, Banjara Hills, Hyderabad as not maintainable and barred by principles of res judicata in view of the judgment in LGC No.24 of 1991, dated 29-12-1995 of the 1st respondent and the judgment in AS Nos.574 and 689 of 1998, dated 1-3-1999 of this Court and to dismiss the same.
2. The facts that led to the filing of the writ petition, in brief, are as follows: The petitioner purchased an extent of 20,560.50 Sq.Mts. (24,590.36 Sq. Yds., approximately Ac.5.00 gts.) of land in S.No.129/11 Paiki, Shaikpet village, Banjara Hills, Hyderabad from one T. V. Ramachandraiah. Originally one Ramulu and Narayana were assigned extents of Ac. 10.00 of land each by the Surfekhas authorities during the year 1340-F under Patta Certificates dated 2nd Dai 1340 F and 25th Azure 1340 F, respectively. It is stated that they were in possession of the said lands since the date of the said assignment in their favour. The name of Ramulu appears at Sy.No.26 while the name of Narayana appears at Sy.No.35 of the list of pattas prepared by the Surfekhas authorities. It is further stated that the name of Ramulu appears in the Seesal Pahani issued for the years 1955 to 1958, which shows the Sy.No. as 129/11 Paiki. It is also stated that the said persons were in possession of the lands till they sold the same to T. V. Ramachandraiah under registered sale deeds dated 16-4-1964. According to the sale deeds as well as the plans annexed thereto show that the properties transferred thereunder bear Door Nos.8-2-269/1 and 8-2-269/2, admeasuring Ac.20.00 situate in Sy.No.129/11 paiki of Shaikpet Village. Soon after purchasing the land, T. V. Ramachandraiah applied to the Municipal Corporation of Hyderabad (for short the "MCH") for mutating the said lands in his favour and mutation was effected by the MCH in proceedings dated 23-7-1964. On an application made by T.V. Ramachandraiah in the year 1965, the MCH issued letter dated 7-1-165 stating therein that house bearing Nos.8-2-269/1 and 8-2-269/2 stand in the name of T. V. Ramachandraiah in the property tax assessment register and that the said door numbers are situated in Sy.No.129/11 paiki. The MCH also issued corresponding certificate dated 18-1-1965 certifying that the said door numbers are situated in Sy.No. 129/11 paiki and the same measures Ac.20.00. The said T. V. Ramachandraiah made the entire suit land into 49 plots bearing Nos.1 to 49 and applied to the MCH for sanction of lay out and obtained sanction vide revision plan No.13/65. Out of the said lay out he sold 21 plots to the petitioner under sale deeds dated 9-12-1966 and 10-12-1966. The petitioner-society in turn sold the said plots to respondents 3 to 22 and 24 to 35 herein and certain other members. T. V. Ramachandraiah sold the rest of the plots directly to certain other members of the society. He paid property tax in respect of the said plots to the MCH upto the date of the sales in favour of the petitioner society and its members. The petitioner and its members are in actual physical possession of the said plots from the date of purchase till date. It is stated that they have erected a temporary shed for Watchman, a stone boundary wall and also displayed the petitioner-society's name on boards erected in the said plots.
3. It is stated that while the matters stood thus, the petitioner-society came to know that the Collector, Hyderabad was in the process of allotting the said lands to Film Nagar Co-operative Housing Society Limited, (for short "Film Nagar Society") and Indira Nagar Welfare Hutsmen Association (for short "Indira Nagar Association"). Thereupon, the petitioner sumbitted a petition before the Collector, Hyderabad on 4-4-1979, asserting its title to the said lands and requesting that no allotment should be made in favour of Film Nagar Society and Indira Nagar Association. It is also stated that without considering the aforesaid petition and without notice to the petitioner-society, the District Collector on 22-5-1979 removed the sign boards and damaged the shed. Thereafter the petitioner-society, as the Film Nagar Society and Indira Nagar Association were trying to encroach upon the land, filed a suit in OS No. 1615 of 1979 on the file of the VII Assistant Judge, City Civil Court, Hyderabad for perpetual injunction restraining the Film Nagar Society, Indira Nagar Association, the Collector, Hyderabad and Mandal Revenue Officer, Golconda from interfering with the possession and enjoyment of the petitioner-society over the suit lands admeasuring Ac.20.00 situate in S.No.129/11 paiki of Shaikpet village, Banjara Hills, Hyderabad. In the said suit the District Collector filed written statement contending that there is no such survey number as 129/11 paiki, that no title is conferred by getting sanctioned layout from MCH that as per documents the said lands are show at Road No.3, while the lands being claimed are at Road No.2, that there is no proper identity of land, that the town survey was published for Banjara Hills and Jubilee Hills area in Gazette dated 6-8-1977, that the said lands were allotted to Filmnagar Society vide G.O. Ms. No.897, Revenue (Q) Department, dated 5-3-1979, that the said lands form part of RS.No.1, Block-B, Ward 10 which correlates to Sy.No.403, that the names of the father of Ramulu and Narayana as shows in the patta certificate do not tally with those show in sale deeds dated 16-4-1964, that their ages also do not tally, that no land was allotted to the Indira Nagar Association, that the Indira Nagar Association is in unauthorised occupation, that the suit is not maintainable for want of notice under Section 80, CPC and that as per Section 14 of the Land Encroachment Act, the Civil Court has no jurisdiction. The civil Court rejected the suit filed by the petitioner observing that there is some sort of resistance or encroachment by the people of Filmnagar Society and Indira Nagar Association and that the same is clear from certain documents. Aggrieved by the said the petitioner filed AS No.209 of 1991 on the file of the Additional Special Judge of SPE and ACB cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad.
4. It is further stated that during the pendency of the suit the Revenue Divisional Officer, Hyderabad filed LGC No.24 of 1991 on the file of the 1st respondent against one Mohd. Mohiuddin Khan and Vadla Hanumantha Chary, alleging that they have grabbed an extent of 1,616 Sq. yards of land which is a part of the above said lands. Later the petitioner-society and Dr. Krishna Murthy the 15th respondent who is a member of the petitioner-society, were impleaded in the said LGC on the basis of the counter filed by respondents 1 and 2 therein, who stated that they are only watchmen of the petitioner and the 15th respondent respectively. In the said LGC the contention of the petitioner was that the land in question is not Government land and is a patta land bearing Sy.No.129/11 paiki and the same was originally allotted to one Ramulu and Narayana. The case of the Government was that there is no such Sy.No.as 129/11 paiki and that the said lands form part and parcel of Sy.No.403, which is Government land. Pending the above LGC, the petitioner obtained a certified copy of the Jubilee Hills Development plan filed in LGC No.71 of 1991, which was a case between the Government and some other parties, and filed the same in LGC No.24 of 1991 and got the same marked as Ex.B27. In the said plan Sy.No.129/11 is shows as patta land. Based on the said plan, the 1st respondent in its judgment dated 29-12-1995 in LGC No.24 of 1991 held that the said plan is authenticated copy of Jubilee Hills development plan, that the same was filed by the Government itself in LGC No.71 of 1991, that the same plan is being filed in other land grabbing cases where the Jubilee Hills development plots are involved, that it is clear from the said plan that Sy.No.129/11 paiki exists in two plots besides Sy.No.129/11, that Sy.No. 129/11 paiki came to be shown as adjoining the Jubilee Hills Development plots and that the existence of Sy.No.129/11 paiki prior to 1964 when the sale deeds dated 16-4-1964 were executed in favour of T. V. Ramchandraiah cannot be ruled out. It was further held by the Land Grabbing Court in LGC No.24 of 1991 that at one point of time Sy.No.129/11 paiki was in existence at the same location where the petitioner purchased the land, that it is difficult to appreciate that the petitioner is in occupation of part of Sy.No.403, that if the plaint Ex.B27 in relation to Sy.No.129/11 paiki is the result of mischife and fraud perpetrated by the Government officials at the instance of the predecessor-in-title of the petitioner that has to be explained and the application has to be filed against the petitioner and all its members in respect of entire extent of Ac.20.00 gts. and not against the respondent No.4 therein, who is in possession of 1180 Sq.mts. It is further stated that the Special Judge in A.S.No. 209 of 1991 filed by the petitioner-society while allowing the appeal considering the judgment in LGC No.24 of 1991 and the Jubilee Hills development plan, held that the petitioner is in possession of the said land and Sy.No.129/11 paiki was in existence by the date of the purchase of the land by the vendor of the petitioner and decreed the suit. Aggrieved by the said judgment and decree the Collector and Mandal Revenue Officer, Golconda filed S.A.No.689 of 1998, while Indira Nagar Association filed SA No.574 of 1998 before this Court. This Court heard both the appeals together and placing reliance on the judgment in LGC No.24 of 1991 and on the Jubilee Hills development plan held that S.No.129/11 paiki was very much in existence and that the petitioner has been in possession of the said lands since the date of purchase. According to the petitioner, since no further proceedings are initiated challenging the said judgment in the second appeals, the common judgment of this Court in the said second appeals has become final and binding on the 2nd respondent Government. It is further stated that since the Revenue Divisional Officer did not question the judgment of the 1st respondent in LGC No.24 of 1991, the same has become final and binding on the 2nd respondent.
5. While so, the Government, 2nd respondent herein, filed LGC No.167 of 1999 on the file of the Land Grabbing Court against the petitioner-society and respondent 3 to 35 herein in respect of Ac.7 29 gts. of land to declare them as land grabbers, for delivery of possession of the land to the 2nd respondent and for awarding damages in a sum of Rs.5 lakhs.
6. Before the Special Court in LGC No.167 of 1999 the Government filed a concise statement wherein incorporating the observations made by the Special Court in LGC No.24 of 1991, it is stated that the matter regarding existing of Sy.No.129/11 paiki has been examined by the District Collector with the. assistance of the Deputy Director, Survey and Land Records, Hyderabad basing on the records available in Collector's Officer and after thorough enquiry it is revealed that Sy.No.129/11 paiki was never in existence and much less the same was assigned to any person. It is further stated by the Government that originally Shaikpet village was an ex-surfekhas village and after the merger of Surfekhas in Diwani in 1358-F (1949 AD) the said village was vested with the Government under Surfekhas Merger Regulation, 1358-F. Initially survey was conducted in 1326-F (1916 AD) and Sethwar was prepared in 1330-Fasli (1920 AD). According to the sethwar there were totally 353 Sy.Nos.in the village and out of them Sy.No.129 with an extent of Ac.3220.02 gts. is classified as Government land. During 1331-F (1921 AD) a supplementary sethwar was issued subdividing Sy.No.129 into 10 subdivisions as Sy.Nos.129-1 to 129-10. The Sy.No.129/1 measuring an extent of Ac.3097.39 gts. was shown as Kancha Tattikhana while Sy.Nos.129/2 to 129/10 measuring Ac.190.03 gts. were show as patta lands.
7. It is also averred that during 1334 Fasli (1924 AD), another supplementary sethwar was issued deleting last Sy.No.353 because of boundary disputes with adjoining village, Yellareddyguda and thereby total survey numbers were reduced to 352. Again in 1346-F (1936 AD) one more supplementary sethwar was issued deleting subdivision of S.No.129/1 to 129/10 and in its place 52 new S.No. were added from 352 to 404. According to the Government during the Surfekhas regime Revision Survey was conducted in 1349-F (1939 AD) and as per the Wasool Baki register i.e., the correlation statement of old survey numbers with Revision Sy.Nos.129/ 11 to 129/87 except Sy.Nos. 129/19 and 129/1985 are correting to different Survey Number and that there is Sy.No. 129/11 paiki. It is stated that the Wasool Baki register prepared after revision survey indicates the details of old Survey number extent and revision survey number extent and the name of the pattedar and the assessment thereon, based on which the sethwar was prepared and neither in the sethwar (original) nor in the sethwar (revised), S.No.129/11 paiki is mentioned. According to the Government Khasra Pahani was prepared in the year 1954-55 under Records of Rights in Land Regulation 1358-F and the said Khasra Pahani does not disclose existence of any Sy.No.129/11 paiki. Likewise, the Sesala Pahani prepared for the year 1955-56, 1956-57, 1957-58 also does not disclose any existence of Sy.No.129/11 paiki. No Pahani Patrika, it was averred, carries the entry in the name of Sy.No.129/11 paiki either during or after the Surfekhas regime.
8. It is stated that town survey was conducted during the year 1965-70 under the provisions of A.P. Survey and Boundaries Act, 1923 and according to which the petition schedule land is surveyed as TS No.1/1/1, Block-B, Ward No.10 and is classified as Government land. The said survey was notified in A.P. Gazette No.41, dated 6-8-1979 under Section 13 of the A.P Survey and Boundaries Act, 1923, which has become final and conclusive proof unless it is modified by a decree of a civil suit within three years from the date of Gazette Notification as stipulated under Section 14 of the Act. On the basis of these factors, according to the Government, there is no Sy.No.129/11 paiki existed at any point of time nor any sub-division was created by the Sarfekhas authorities during Sarefekhas regime. The Sy.No.129/11 paiki is a ghost Survey number and brought into existence with an ulterior motive to lay claim over the Government land.
9. Further it is stated that during Surfekhas regime, HEH the Nizam has prepared a layout of 169 plots for development of Jubilee Hills while constituting a separate Municipality known as Jubilee Hills Municipality. The plots ranging about 5 to 10 acres were given to Nobles and Nawab on payment of land value. It is also stated that on verification of the original layout of the said erstwhile Jubilee Hills Municipality, it reveals that Sy.No.129/11 was shown adjacent to the layout situated at Road No.2 of Banjara Hills but there is no survey number as 129/11 paiki. A copy of the Jubilee Hills lay out plan marked as Ex.B-27 in LGC No.24/91 is mischievously interpolated by the then survey staff who made survey number 129/11 as Sy.No.129/11 paiki, whereas the original layout, ink signed copy of the layout does not contain the word "Paiki" at all. Further the petitioner-society and its members are tracing their title to Ramulu and Narayana who are said to have been assigned patta of 10 acres of land each by the Surfekhas Mubarak, the HEH Nizam in Sy.No.129/11 paiki old and new Sy.No.129 of 1994, dated 2nd Dai 1340-Fasli and 129/110, dated 25th Azar 1340-F. But no revenue and survey records reveals such assignment made by HEH the Nizam in 1340-F. Neither the petitioner-society nor its members have produced any such assignment records showing the assignment of land in Sy.No.129/11 paiki in the year 1340-F. It is stated that the petitioner-society is claiming to have purchased the petition schedule land from one T. V. Ramachandraiah in the year 1966 through different sale deeds showing the petition schedule land at Road. No.3 of Banjara Hills with Municipal Nos.8-2-269/1 and 2 and the said T. V. Ramachandraiah said to have purchased the same from Narayana and Ramulu in the year 1964 with the following Boundaries:
Boundaries of the land claimed by Sri Narayana :
North: Government land South Neighbour's land East: Government land West: Land of Sri Ramulu Boundaries of the land claimed by Sri Ramulu:
North: Government land South: Neighbours land East: Government land West: Neighbours land.
10. It is also stated that the petition schedule land is situated at Road No.2 of Banjara Hills and the identity of the property with reference to sale deeds cannot be identified at Road No.2 since the land said to have been purchased by the respondents in the LGC is shown at Road No.3 of Banjara Hills. The respondents in the LGC have never produced the original assignment patta certificates/documents showing the assignment of Ac.20.00 land in S.No.129/11 paiki in 1340 Fasli and the Revision Book.
11. It is further stated that M/s. Anand Prabhath Co-operative House Building Society Limited, writ petitioner filed a suit in OS No.1615 of 1979 on the file of VII Assistant Judge, City Civil Court, Hyderabad for perpetual injunction against M/s. Filmnagar Co-operative Housing Society Limited and two others, wherein an objection was taken by the Government that the suit cannot be maintained without a prayer for declaration of title. It is also pleaded therein by the Government that the identity of the schedule land is not tallying with the documents through which the title is claimed to have been claimed. The respondents in the LGC claimed that a patta said to have been granted to an extent of Ac. 10.00 by the HEH the Nizam dated 1340 Fasli to Ramulu S/o. Venkata Ramaiah in Sy.No.129/11 paiki Old and new Sy.No.129 of 1994. Another extent of Ac. 10.00 gts. was assigned to one Sri Narayana in Sy.No.129/11 paiki old and new Sy.No.129/110, dated 25th Azur 1340 Fasli. As per the sale deed executed by Sri Ramulu in favour of Sri T. V. Ramachandraiah dated 16-4-1964. Ramulu is aged 40 years and whereas patta was granted in 1340 Fasli, his age would have seven years. Similarly in the sale deed dated 16-4-1965 executed by Sri Narayana in favour of T.V. Ramachandraiah his age was 50 years and when the patta was in 1340 Fasli his age would have been 17 years, thus both the alleged assignees would have been minors when the alleged pattas were granted. The plea put forward by the State was that the land claimed forms part of TS No.1, Block-B, Ward-10 which is correlated to Sy.No.403 and the Sy.No.129/11 paiki existed neither in Survey records nor in revenue records and there is a Sy.No. 129/11 measuring Ac. 7-34 gts. shown in the name of Mir Mahaboob Sultan, correlating to TS Nos.6 and 7 of Block-B, Ward No. 10. It is stated that the 1st defendant in the said suit have allotted 52 acres of Government land and in pursuance of G.O. Ms. No.397, Revenue Department, dated 5-3-1979, the vacant land was handed over on 27-3-1979. In the said suit, one of the issues framed was whether the defendants are in possession of the suit scheduled land on the date of the suit. The civil Court has observed that the Scheduled property according to the plaintiff is vacant land and there is a shed constructed for the purpose of residence of the watchman. The VII Assistant Judge, City Civil Court, Hyderabad has also observed that "whereas all the documents relied upon by the plaintiff to show its title are of the property situated at Road No.3 and Sy.Nos.129/110 and 94. There is a dispute raised by the defendants with regard to the identity of the property claiming that the suit property as shown in the schedule of the plaintiff is in Sy.No.403 and it is at Road. No.2, Banjara Mills but strangely there are no steps taken by the plaintiff's to establish the identity of the suit property as that of the property covered under sale deeds. The Civil Court dismissed the suit against the defendant making an observation that the defendant had not been able to establish his possession over the suit property and very identify of the suit property as shows in the title deeds is not tallying with that of the suit schedule land. Against the rejection of the suit the appeal in A.S.No.209/91 filed by the defendant was allowed on 16-1-1998 relying on a decision of this Court in Ch. Pedda Appala Swamy v. Chepana Appalanaidu and others, 1996 (2) ALD 499. This Court in that case observed that "a suit for mere declaration is not maintainable where the plaintiff being able to seek further relief omits to do so, but the same thing cannot be said to a suit for mere injection which is perfectly maintainable without a prayer of declaration of title. The suit is decreed granting perpetual injunction against the respondents from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff-society". Against this order, the applicant-Government filed SA No.689 of 1998 and this Court while dismissing the said Second Appeal observed that "in fact on consideration of the entire evidence, the Special Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, Hyderabad came to the conclusion that it was unable to express any opinion on the various issues in that Land Grabbing Case and while dismissing the same, observed that the judgment does not preclude the institution of fresh proceedings against the present plaintiff-society if on proper enquiry it is established that Ex.B27 is not true and correct and that the plaintiff-society and its members are in possession of Ac.20.00 gts. in Sy.No.403 and not in Sy.No. 129/11 of Shaikpet village. Admittedly, defendants 3 and 4 in the suit have preferred any case against the plaintiff-society in the Land Grabbing Court with all the material to establish their claim over the suit land. It was contended by the Government that the earlier proceedings do not bar the filing of LGC No.l67 of 1999.
12. It is further stated that though the writ petitioner-society is claiming Ac.20.00 gts. in fact only Ac.7.29 gts i.e., 31,248 sq. mts. is available and the remaining land is covered by slum known as Indiranagar Slum for which house site pattas have been granted to the eligible beneficiaries by the Government who were in possession. Hence LGC No. 167 of 1999 was filed against the writ petitioner-society in respect of an extent of Ac.7-29 gts.
13. In this writ petition the 2nd respondent Government filed counter affidavit reiterating the averments made in LGC No.167 of 1999. However, in the Counter affidavit it is stated that as per the observations in LGC No.24 of 1991 and SA No.689 of 1998 the Land Grabbing Case has been filed in LGC No.167 of 1999 before the Special Court, which is competent to decide the disputed questions of title and possession of land and the Special Court has taken cognizance and admitted the Land Grabbing Case. The respondents in the writ petition filed Interlocutory Application before the special Court and a detailed counter was filed to substantiate the claim of the Government that the land in question is a Government land. It is stated that the Land Grabbing Case is under trial before the Special Court in LGC No.167 of 1999. Therefore the respondents pray that the present writ petition is not maintainable and the petitioner cannot invoke Article 226 of the Constitution of India and sought for dismissal of the same.
14. The main thrust of the argument seeking writ of prohibition is that the land in dispute is never the land of the Government and on the other hand it is the land belonging to the HEM the Nizam and subsequently transferred to Sri Ramulu and Sri Narayana and from whom T. V. Ramachandraiah purchased under a registered sale deed dated 16-4-1964 and from him the petitioner-society and its members purchased the land. Before the land was purchased by the petitioner-society all the Revenue Records were in favour of T. V. Ramachandraiah and the mutation was also effected in his name. The municipality had also granted permission for making making constructions after satisfying itself the possession and enjoyment of the property in question by T. V. Ramachandraiah. Subsequent to its purchase some of the members of the society also obtained permission from the Municipality and put up structures. In various proceedings including in LGC Nos.24 of 1991 and 71 of 1991 initiated by the Government the issue whether Sy.No.129/11 paiki is a part of Sy.No.403 are different was concluded by the said quasi judicial authorities. Some of the documents which were relied upon by the Government and filed before the Special Court seeking to declare the society and its members are land grabbers were considered in all those earlier proceedings. To hold that Ex.B27, Jubilee Hills Development Plan was a fake one as ordered by the Special Court in LGC No.24 of 1991, the authorities did not held any enquiry as to the correctness or otherwise of the documents. In OS No.1615 of 1979 on the file of the VII Assistant Judge, City Civil Court, Hyderabad for perpetual injunction filed by the petitioner-society and its members, which was decreed, and later in AS No.209 of 1991 it was held that the petitioner society is in possession of the lands and Sy.No.129/11 paiki was in existence by the date of purchase of the land by the vendor of petitioner and allowed the appeal and decreed the suit and the same was confirmed by this Court in SA Nos.689 and 574 of 1998. This Court elaborately dealt with in the Second Appeals as to the possession and enjoyment of the property and gave a clue to the title and weakness in the case of the Government. The issues involved in the earlier proceedings initiated by the Government both before the Special Court and the Civil Court is almost identical one in the proceedings in LGC No.167 of 1999. The Special Court before taking cognizance of the matter it should have applied its mind whether the State has made out a prima facie case as to whether the petitioner-society and its members are the land grabbers and whether they entered into the land in question unlawfully. It is also contended that taking cognizance of the case is not based on the relevant material and the opinion formed by the Special Court is arbitrary. It is further contended that initiation of proceedings in LGC No. 167 of 1999 is hit by the principles of res judicata. In support of their contention they also placed reliance on the authorities which will be referred to a little later.
15. The learned Advocate-General appearing for the State submitted that the land styled as Sy.No.129/11/Paiki is different from Sy.No.403 and the land in question is the Government land and the petitioner-society and its members are land grabbers. The issues involved in the earlier proceedings have no bearing on the present application. The questions involved in the earlier case and the present case are different and the parties therein are also different and that the principles of res judicata is not at all attracted. He submitted that if the petitioners feel that the Special Court has no jurisdiction to proceed with the enquiry they may request that Court to raise preliminary issue as to the jurisdiction. To support his contention that when the principles of res judicata be attracted and whether a decree for permanent injunction will bar the Court to seek for declaration of title placed reliance on a catena of decisions of the Supreme Court.
16. To appreciate the rival contentions and to consider whether writ of prohibition or any other writ can be granted it is proper to go through the provisions of Section 11 of the Code of Civil Procedure and also some of the provisions of the A.P. Land Grabbing (Prohibition) Act, 1982 (for short the "Act").
"Res judicata - Section 11, CPC, reads as follows :
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I:--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II :--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III :--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV :--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a made directly and substantially in issue in such suit.
Explanation V :--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused.
Explanation VI :--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII:--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII:--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
17. It is submitted by both sides that the Land Grabbing Act was published in the A.P. Gazette on 6-9-1982. The reasons tobring about such a Legislation were that there are organised attempts on the part of certain lawless persons operating individually and in groups to grab either by force, or by deceit or otherwise lands belonging to the Government, a local authority, a religious or charitable institution or endowment, including wakf or any other private person. Further the land grabbers are forming bogus co-operative housing societies or setting up fictious claims and including in large scale and unprecedented and fraudulent sales of land through unscrupulous real estate dealers or otherwise in favour of certain section of people, resulting in large scale accumulation of the unaccounted wealth. As public order is adversely affected thereby now and the by such unlawful activities of land grabbers in the State, particularly in respect of urban and urbanisable lands, it was felt necessary to arrest and curb such unlawful activities immediately by enacting a special law in that regard. One more reason was that public order it will be also be adversely affected now and then in the State in view of the unlawful activities by the land grabbers in the State.
18. Section 2 of sub-sections (d) and (e) deal with "land grabber" and "land grabbing" respectively, which read as follows:
Section 2(d): "land grabber" means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for consideration of unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above-mentioned acts, and also includes the successors in interest."
Section 2(e): "Land grabbing" means every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitable inslitution or endowment, including a wake, or any other private person) by a person or group of persons, without any lawful entitlement and with a view to illegally taking possession such lands, or enter into or create illegal tenancies or lease and licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorized structures thereon for sale or hire, or give such lands to any person or rental or lease and licence basis for construction, or use and occupation, of unauthorised structures; and the terms to grab land" shall be construed accordingly".
19. From the above it is clear that a person is a land grabber if he commits the act of land grabbing without any lawful entitlement and with a view to illegally taking possession of such lands, or enter into or create illegal tenancies or lease and licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorized structures. In other words there shall be a sudden and unscrupulous seizure of the land with a view to appropriate the same for himself.
20. Section 2(j) of the Act deals with unauthorised structures, which reads as follows:
"unauthorised structures" means any structure constructed, without express permission in writing or the Municipal Commissioner in any Municipal Corporation of Municipality, and elsewhere of the authority concerned, or except in accordance with any law for the time being in force in the area concerned.
21. Section 3 of the Act stipulates that the land grabbing to be unlawful. It says that the land grabbing in any form is hereby declared unlawful; and any activity connected with or arising out of land grabbing shall be an offence punishable under the Act. Section 4 of the Act prohibits the land grabbing and it says that no person shall commit or cause to be committed land grabbing and any person who, on or after the commencement of the Act, continues to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, local authority, religious or charitable institution or endowment including a wakf, or other private person, shall be guilty of an offence under the Act. It further says that whoever contravenes the provisions of sub-section (1) of Section 4 or sub-section (2) of Section 4 shall on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to five years, and with fine which may extend to five thousand rupees. Section 5 speaks about penalty for other offences in connection with land grabbing and Section 6 is relating to offences by companies, which says that if the person committing an offence under the Act is accompany, the compay as well as every person in charge of, and responsible to the company for the conduct of its business at the time of a commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. Section 7 speaks about the constitution of Special Courts. Section 7-A speaks about Special Tribunals and its powers. Section 8 deals with the procedure and powers of the Special Courts, which reads as follows:
(1) The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders byway of interim directions) as it deems fit;
(1-A) The Special Court shall, for the purpose of taking cognizance of the case, consider the location, or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter:
Provided that the Special Court shall not take cognizance of any such case without hearing the petitioner.
(2) Notwithstanding anything in the Code of Civil Procedure, 1908 (Central Act 5 of 1980) (the Code of Criminal Procedure, 1973) on in the Andhra Pradesh Civil Courts Act, 1972 (Act 9 of 1972) any case in respect of an alleged act of land grabbing or the determination of questions of title and ownership to, or lawful possession of any land grabbed under this Act, shall, subject to the provisions of this Act, be tribal in the Special Court and the decision of Special Court shall be final."
(2-A) xx xx xx
22. From the above definition it is clear that the words "land grab" is nowhere defined in the Act, but the dictionary meaning says that it is "sudden grasp or clutch or unscrupulous seizure". In other words "grab" means "grasp suddenly and eagerly" and hence appropriate unscrupulously. Thus there shall be some activity relating to possession or entering into land. "Land Grabbing" i.e., every activity of grabbing of any land without any lawful entitlement and with a view to illegally taking possession of such lands.
23. It is clear from the provisions of the Act that before entertaining and proceeding to enquire into the matter placed before the Special Court, which prima facie, by mere look shall make the Court to form an opinion that there is some truth in the allegations made by the complainant. The opinion of the Special Court shall be judicious in nature before taking cognizance. Taking cognizance of the matter is nothing but judicious application of mind. In other words taking cognizance is a judicial act not involving any formal action of any kind. Such a cognizance shall be taken for the purpose of proceeding in a particular way as stipulated in the Act itself.
24. It is well settled that the State like any other citizen is aggrieved by any action on the part of the citizen or feels that its rights are going to be affected it shall approach the competent Court within a reasonable time. The Act does not prescribe any limitation to approach the Special Court, but that docs not mean that it can approach for the relief whenever it likes. The applicability of Limitation Act though silent, but when a question as to title is involved a request can be made to take action within a reasonable time. Further the Courts constituted under the special Act to deal with the proceedings which are summary in nature are not supposed to decide the question of title as the same are to be decided by the Special Court as held by the Supreme Court.
25. In the case of Government of A.P. v. Thummala Krishna Rao, AIR 1982 SC 135, dealing with the provisions of A.P. Land Encroachment Act held as follows:
"The summary remedy for eviction provided by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". To decide whether the summary remedy can be used what is relevant is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bone fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary Courts of law. The summary remedy under Section 6 is not suited to resolving questions of title. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. Duration of occupation is also relevant in that a person in occupation of a long time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law."
26. It is clear from the pleadings of the parties that possession of the petitioner-society and its predecessors-in-title started prior to the year 1964, whereas the application under Section 8 of the Act was filed on 15-10-1999 making several allegations against the petitioner without mentioning when exactly the petitioners grabbed the land. The cause of action, according to the respondents, arose on 29-5-1979 when the petitioner-society filed a civil suit. It is well settled that a person can set up his title to the property by saying that he has perfected his title by adverse possession.
27. Dealing with the question whether the Limitation Act can be made applicable with regard to the perfection of title by adverse possession, a Division Bench of this Court in K.V. Sreenivasa Rao v. Special Court, 1996 (4) ALD 1033 (DB), held as follows:
"There is nothing in the Act to hold the provisions of Limitation Act as regards adverse possession to have been given a go bye under the provisions of the Land Grabbing (Prohibition) Act. It is true that under the Act a different limitation period could have been prescribed as the Act is one with the assent of the President. But unless that is done, the provisions of the Limitation Act, so far as not inconsistent with the provisions of the Land Grabbing (Prohibition) Act, would supplement the later Act."
28. In Ghoundla Venkaiah v. Mandal Revenue Officer, RR Dist., , a Division Bench of this Court (one of us N.Y. Hanumanthappa is a member) held as follows:
"The evidence produced by the State itself clearly established that the petitioners have perfected their title over the schedule land by way of adverse possession applying the principle of 'tacking'. Thus possession of the petitioners over Ac.5.00 of schedule land is not without lawful entitlement. The evidence available does not suggest that they are land grabbers and the schedule land has been grabbed by them. On the other hand they entered the land as landless persons and they requested the Government for assignment by virtue of their long standing possession and improvements made to the land and paying tax to the Government. They proved that they are lawfully entitled to continue in possession and enjoyment of the land. As such their possession is not one as defined in the A.P. Land Grabbing (Prohibition) Act, 1982 and the petitioners will not come within the purview of the said Act."
29. To hold that the contentions raised by the writ petitioners and the authorities relied upon by them have no application and that the writ petition is also not maintainable, the learned Advocate-General urged that if the petitioners feel that the application filed by the State before the Special Court is attracted by the principles of res judicata they can contend the same before the Special Court which will have jurisdiction to decide that issue. According to him the prayer made in the writ petition is to declare that LGC No. 167 of 1999 filed before the Special Court is not maintainable. Secondly the said application is not hit by the principles of res judicata in view of the findings in LGC No.24 of 1991 as also the other civil proceedings.
30. The learned Advocate-General with regard to the maintainability or otherwise of the writ petition relied upon a decision of the Supreme Court in CARL STILL Gmbh. v. State of Bihar, . He tried to convince the Court that the judgment rendered by this Court in SA Nos.574 and 689 of 1998, dated 1-3-1999 does not prohibit the present application in LGC 167 of 1999 as the title was never pleaded by the State even in LGC No.24 of 1991 or in the Second Appeals. Even if any finding is given in the suit for injunction against the State the same does not prevent the State to file an application under Section 8 of the Act for the proposition that in a suit for injunction the title is not pleaded and the finding in the said suit does not bind the parties.
31. Advancing his argument that whether the issue involved is hit by principles of res judicata the learned Advocate-General to dislodge the plea of res judicata relied upon a decision of the Supreme Court in N. Annappa v. State of Karnataka and another, 1995 (5) SCC 188. Thus contending he sought that the writ petition be dismissed.
32. With the above back ground we have to see whether the Special Court convicted itself as to the prima facie case is made out by the State in initiating the proceedings against the petitioner-society under Section 8 of the Act before taking cognizance; whether it has complied with the mandatory provisions of Section 8 of the Act.
33. It is to be seen from the records that the application was filed by the Special Court on 15-10-1999 in a prescribed form together with concise statement. In the concise statement the applicant clearly narrated the entire picture about the case including the earlier case in LGC No.24 of 1991. As per the proviso to Section 8 of the Act that it is mandatory of the Part of the Special Court to take cognizance only after hearing the petitioner. The cognizance has been taken by the Special Court as mentioned in the proceedings sheet of the Special Court reads as under :
"Heard the learned Special Government Pleader Sri N. Subba Reddy. Admit and register as LGC ....... of 1999.
The special Court has taken cognizance of the case under Section 8(1) of the A.P. Act - XII of 1982 having been satisfied of the prima facie evidence and the material furnished in the application and considering the location, extent and the value of the land alleged to have been grabbed and the substantial nature of the evil involved and in the interest of justice.
Issue Gazette notification under Section 8(6) of the Act calling for objections, if any by 18-11-1999.
Issued notice to the respondents through RP by 18-11-1999. Post on 18-11-1999.
The learned Government Pleader is directed to deposit process within five days.
IA No.1176 of 1999: Issue urgent notice to the respondents returnable within two weeks. Post on 18-11-1999."
34. Except saying that it heard the Government Pleader Sri N. Subba Reddy in the matter the Special Court has not complied with the mandatory provisions of Section 8 of the Act.
35. Initiation of proceedings under Section 8 of the Act arises only when the property belongs to the Government and the others have grabbed the same, whereas the observations made or the findings given by the Special Court in LGC No.24 of 1991 and also by this Court disclose as under :
"Thus there is no consistency in the evidence adduced by the Government. On the other hand PWs.1 and 2 unequivocally stated in this case that there was no S.No. 129/11/Paiki but in other cases filing such as LGC No.71/91 filed authentic copies of Ex.B-27 showing the existence of S.No. 129/11/Paiki in two plots apart from S.No. 129/11. If there was any manipulation in Ex.B27 which was earlier filed by the Government as Ex.C1 in LGC 71/91 this manipulation would have been made even prior to 1964 i.e., even before Narayana and Ramulu executed the sale deeds Exs.B11 and B12 in favour of Ramah Chandraiah on 16-4-1964 because the said S.No. 129/11/Paiki appears in Exs.B11 and B12. The applicant has not made any effort reconcile the discrepancy in the plan Ex.B-27 which shows the existence of S.No.129/11/Paiki, and the oral testimoney of PWs.1 and 2 that there was no survey number like S.No.129/11/ Paiki in existence at any time. This shows that plans are being produced before the Court without even looking into their contents."
36. In LGC No.24 of 1991 the subject matter of the dispute was only in respect of 1180 sq. metres wherein a single room was constructed and that these rooms were constructed for their watchmen. The issue that cropped up was whether the respondents therein are the land grabbers or otherwise. It gave a finding that 1180 sq. metres involved in the said complaint is not party of Sy.No.403, but only part of Sy.No.129/11/Paiki, which is a private land. The Special Court considering the said land grabbing case relied upon Ex.B27 to show that Sy.No.129/11 was in existence. As to the nature of evidence adduced by the Government before the Special Court at Para 28 of its judgment held as under:
"That apart, R3 society has sold several plots out of the lay out prepared by the vendor Ramachandraiah under Ex.B17. According to this lay out there were plots on all the three sides of plot No. 11 and on the other side there is a park beyond which there is a road all within the lay out. It is not known why respondent No.4 who is the owner of plot No.11 was singled out and characterized as a land grabber and LGC was filed against him alone leaving all the other 48 plot holders if the entire lay out is within S.No.403, specially when plot No. 11 is not in the periphery but surrounded by the society's land on all sides."
It further observed at Para 31 as under:
"Admittedly, Ex.B27 which is the authenticated copy of Jubilee Hills Development plan was not filed in the said suit. The plan was filed by the Government themselves on 4-9-1992 in LGC No.71 of 1991 and the same plan is filed in the other LGCs. Where the Jubilee Hills Development plots are involved. In the face of this plan which clearly shows the existence of Sy.No.129/11 Paiki in two plots besides Sy.No.129/11 and in the absence of any explanation on the part of the Government how Sy.No.129/11 Paiki came to be shown as adjoining the Jubilee Hills Development plots, the existence of Sy.No.129/11 paiki prior to 1964 when the sale deeds Exs.B11 and B12 were executed in favour of T.V. Ramachandraiah on 16-4-1964 cannot be ruled out, although the case of the respondents Nos.3 and 4 is that S.No.129/11/Paiki was at one point of time were given the new Nos.129/110 and 94, the existence of which is disclaimed by PWs.1 and 2."
It also observed in Para 33 as follows:
"Thus, what is being claimed by R3 society as S.Nos.129/11 Paiki is being claimed by the applicant as part of S.No.403 belonging to the Government. If plot No. 11 in the occupation of R4 alone in respect of 1180 sq. metres leaving the entire society which is claiming 20 acres of land and some of the members of which who have purchased like R4 have constructed compound walls etc., in some of the plots as come out in evidence of RWs.1 and 2."
37. Thus holding the Special Court dismissed the application filed by the State with an observation that the judgment rendered by them does not preclude institution of fresh proceedings against R3, the petitioner herein and all the members of the R3 society, if on proper enquiry it is established that Ex.B27 is not true and correct and that R3 and its members are in possession of Ac.20-00 gts. of land in Sy.No.403 and not in S.No.129/11 paiki as claimed by R3.
38. In civil proceedings which culminated into S.A.Nos.574 and 689 of 1998, the plea taken by the State was that the identity of the schedule land is not tallying with the documents through which titles have been claimed.
39. According to the Government Sy.No. 129/11 measuing Ac.7-34 gts. never in existence and it was a ghost survey number. The learned Judge of this Court while dismissing the Second Appeals filed by the State observed that "it is thus clear from Ex.A.21 and the documents in the Land Grabbing Case that there is much scope to believe that S.No.129/11/ Paiki existed. In that view of the matter, this being a suit for perpetual injunction, I do not see any doubt as to the identify of the suit property and possession of the same by the plaintiff." The learned Judge in the Second Appeals dealing with the claim made by the State observed as follows:
"Exs.A1, A2, A3 and A4 plan attached to it, Ex.A5 and Ex.A6 plan attached to it and Exs.A7 registered sale deeds show as to how the land of 20 acres out of Survey No. 129/11 of Shaikpet village passed from the original pattedars to the plaintiff. It is also seen that those lands were also given Municipal numbers. Exs.A10, A11 and A12 show that they lay out plans in respect of 20 acres were got approved by T. V. Rumuchandraiah. The above documents amply establish that the plaintiff and their predecessors-in-title have been in peaceful possession and enjoyment of the same."
40. According to the learned Judge approval of lay out and allotment of municipal numbers to the schedule land itself show that there is no difficulty to identify the suit property. According to him in the sale deeds Road No.2 and in the plaint Road No.3 is mentioned, but this discrepancy cannot be a hurdle for identifying the suit land. From the evidence he found that as admitted by both sides that the entire are a of the extent of 20 acres of land was already given municipal numbers 8-2-269/1 and 269/2. According to him the plaintiff and its members and their predecessors-in-title have been in possession of the same as bona fide purchasers without objection from any quarter till filing of the suit in this case and subsequently, land grabbing case was filed against them. The consistent plea and evidence adduced on behalf of defendants 3 and 4 both in this litigation and in the Land Gabbing Case is that there was no survey No. 129/11 out of which any land could be allotted to anybody by the Government.
41. Even assuming for a moment whether the petitioner-society has perfected his title by adverse possession or not on facts a Division Bench of this Court (one of us N. Y. Hanumanthappa, J. is a member) in Mohd. Iqbal v. N. Prabhakar and another, , held as follows:
"In the case on hand sufficient material was made available by the respondent before the Court. Both the parties understood that the respondent set-up his claim on the basis of several documents alternatively on his peaceful, continuous and undisturbed possession for more than 12 years. As admitted by the petitioner himself, the respondent has been in possession and enjoyment of the schedule property from 1970 till the filing of application before the Special Court during February, 1989. Thus, though adverse possession is not specifically pleaded, the proof was there that the respondent had even perfected his title by adverse possession. In the absence of a pleading if the parties entered into the witness box understanding the issues involved and the evidence given is directed in respect of certain point and that particular point is established, then it is not open for the other side to contend that in the absence of raising such point, the finding should not have been given in favour of his opposite party. Here both the petitioner and the respondent understood their position well, and gave evidence, and the point went in favour of the respondent. As such, it is not open for the petitioner to say that the Special Court should not have given the finding that the respondent perfected his title by adverse possession. Such a contention is not tenable."
42. In the said case this Court considering the question whether this Court can interfere with the findings of Tribunal constituted under the Act exercising the jurisdiction under Article 226 of the Constitution, held as under:
"Under Article 226 of the Constitution of India, this Court is neither a fact finding authority nor it has power to reappreciate the evidence when it has been asked to decide legal issue under Article 226 of the Constitution. All that the Court has to see is whether there is any procedural illegality or irregularity or any violation of the statutory rights or denial of fundamental rights. From the material placed before the Court, it is difficult to hold the existence of any of the above circumstances in order to interfere. On facts also, the Special Court while discussing elaborately held all the point against the petitioner. The petitioner failed to make out a prima facie case that the respondent is a land grabber and has been in unlawful possession of the schedule land. On the other hand, he has been in possession and enjoyment of the schedule land pursuant to the title which his predecessor-in-tile had either by the petitioner or by his predecessor-in-title for a period of more than 18 years. But the petitioner attempted to put a claim only during February, 1989 when the A.P. Land Grabbing (Prohibition) Act, 1982 came into effect."
43. In the light of the foregoing discussion and also the earlier decisions of the Special Court and this Court in respect of the same property, it is clear that the petitioner-society had title over the property. The request of the Government is, therefore, neither just nor reasonable. The allegations made against the petitioner-society is frivolous and fictitious. When the issues involved in the earlier proceedings and in the present proceedings are one and the same it is not proper to allow to continue the said present proceedings. If the present proceedings are continued to be allowed, it is nothing but giving a chance to the party to litigate endlessly. The application filed by the State before the Special Court in LGC No. 167 of 1999, when the issue involved was earlier decided by the same Court in LGC No.24 of 1991 is nothing but abuse of process of Court and unnecessarily taking away the valuable time of the Court. The conduct of the State also does not inspire confidence to accept its plea. In the application filed by the State before the Special Court it is mentioned that the cause of action for the present application arose on 29-5-1979. When it was aware that the persons who are not at all connected with the property in question are trying to lay hands on the property as pointed out in LGC Nos.24 and 71 of 1991 and also in serveral proceedings, the State should have taken steps at an appropriate time against the petitioner-society. From the records produced by the State it is clear that the petitioner-society has been in possession either on its own or through its predecessors-in-title prior to 1964. The petitioner-society's possession is continuous and uninterrupted.
44. Before taking cognizance of a case under Section 8 of the Act there shall exist a prima facie case and then the Court shall form an opinion to take cognizance. As to the opinion to be formed, the same shall be honest and not arbitrary and it shall be the result of impartial application of mind to the material placed before it. Then only taking cognizance justifies.
45. The contentions raised in the concise statement of facts filed in support of LGC No. 167 of 1999 are not supporting the case of the Government since there is no prima facie case made out to form an opinion that the petitioner-society or its members claiming under the petitioner-society have entered into the land in question unlawfully or usurped the land surreptitiously. It shall be borne in mind that without examining the relevant material placed before it in the present proceedings and also not complying with the mandatory provisions of Section 8 of the Act and without hearing the petitioner the Special Court has taken cognizance of the case simply recording the provisions of the Act in the proceedings sheet. Thus the same is violate of mandatory requirements of the Act. The contentions raised in the application do not also suggest to take action as contemplated under the provisions of the Act. Therefore it is necessary and proper to put an end to such an unnecessary litigation, lest it may cause irreparable hardship to both the parties.
46. It is true that the question of jurisdiction can be raised before the Special Court also. But pendency of proceedings before the Special Court will not prevent the litigant to invoke the jurisdiction of this Court under Article 226 of the Constitution to seek a writ of mandamus, prohibition or any other appropriate writ to declare the proceedings pending before the Tribunal or the Court as illegal and to quash initiation of such proceedings.
47. In this writ petition the petitioner herein sought for a writ of mandamus or appropriate writ or direction declaring that the proceedings initiated before the Special Court as illegal and not maintainable. In other words the petitioner requested this Court to prohibit the Special Court from proceeding with the case.
48. This Court can issue a writ of prohibition when it is shown that proceedings before the Court or the Tribunal or from the material made available suggests that the same is without justification or the decision making process is irregular then person aggrieved can move the Court for issuance of a writ of prohibition to quash the initiation or continuation of such illegal proceedings without waiting till those proceedings run their full course.
49. The Government is fully aware that previous proceedings before the Special Court in LGC Nos.24 and 71 of 1991 and also before this Court in SA Nos.689 and 574 of 1998 that the petitioner has a right as to his continuous possession and enjoyment in respect of the property in question. But requesting the Special Court to readjudicate the same issue and if the Special Court accedes to such a request then it amounts to abusing the powers conferred on such a Court.
50. The writ of prohibition cautions the Court or the Tribunal either from exceeding the jurisdiction or such continuation and its final decision likely to be brought up and quashed by certiorari.
51. The material placed and the information furnished suggest that initiation of proceedings by the Government before the Special Court is unwarranted and it unnecessarily drags the writ petitioner to face hardship. State has not made out a prima facie case to show that the writ petitioner has grabbed the land. Taking cognizance by the Special Court in the present proceedings in the absence of showing from the concise statement produced that the petitioner has grabbed the land not in accordance with the provisions of Section 8 of the Act. As such it is quite proper to prohibit the Special Court from proceeding with the case.
52. For the reasons stated above the entire proceedings pending before the Special Court are liable to be quashed and the writ petition is allowed.
53. Sri K. Pratqp Reddy, learned senior Counsel appearing for the petitioner fair enough in submitting that if the State feels that the title of the property vests with the State, it is open for the State to adjudicate the same before an appropriate forum. In view of this submission it is observed that if the Government feel that the title to the disputed property vests in it, the Government is at liberty to adjudicate the matter on the issue of title before an appropriate forum.
54. Subject to the observation indicated above, the writ petition is allowed, but in the circumstances, there shall be no order as to costs.