THE HON'BLE SRI JUSTICE S.V. BHATT WRIT PETITION No.27090 of 2009 Between:
1. Guntupu Sri Lakshmi and others.
PETITIONERS AND
1. The District Collector, Collectorate, Maharanipeta, Visakhapatnam District, and others.
RESPONDENTS ORDER:
The subject matter of the writ petition is Ac.3.78 cents covered by Sy.Nos.70/1, 70/2 and 70/3 of Gopalapatnam area within the corporation limits of Visakhapatnam.
2. The petitioners pray for Mandamus declaring the inaction of respondents in issuing pattas for the petition land, stated to be in their possession, in spite of repeated requests, as illegal, arbitrary and contrary to the provisions of the Revenue Laws. The petitioners pray for a further direction to respondents to consider their cases for grant of pattas as per the orders issued by the Government from time to time and issue pattas for the petition land.
3. The case of petitioners is that late Koppaka Chinnaiah @ Venkata Swamy, through documents bearing Nos.903/1921, dated 30.07.1921 and 585/1931 dated 18.05.1931, acquired dry land covered by Sy.Nos.61, 68, 219, 75/1/A, 75/1/6 of Gopalapuram village. The petitioners claim to be successors in interest of late K. Chinnaiah. The definite case of petitioners vis-à-vis the petition lands is that the petitioners are also in possession and enjoyment of Government waste land, covered by Sy.Nos.70/1, 70/2 and 70/3. The Government lands are in the neighbourhood of the lands purchased by petitioners through the said registered sale deeds. The petitioners claim actual and physical possession for the last several decades of petition land. The respondents for the reasons best known to them did not attach importance to the petition land and for all purposes, the petition land was cultivated by the family members of the petitioners. It is further stated that the possession and enjoyment of petitioners is known to the revenue authorities as well.
By the time the revenue authorities decided to take action under Land Encroachment Act, the petitioners claim to have perfected right and title to the petition land by adverse possession and prescription. The cause of action for filing the writ petition is that the revenue officials came to the land and openly stated that they will occupy the petition land and threatened to forcibly evict the petitioners. The petitioners claim to have resisted the efforts of respondents by showing registered documents and the payment of land revenue to Government. The revenue officials while leaving the petition land warned the petitioners with dire consequences if encroachments are not removed. Without change in their approach the respondents again visited the petition land, and directed eviction from petition land. This compelled the petitioners to file civil suit for perpetual injunction and the petitioners stated that finally the said suit was dismissed. Apprehending forceful dispossession at the hands of the respondents, the present writ petition is filed for the reliefs referred to above. Along with the writ petition the petitioners, to evidence actual enjoyment of petition land, filed demand notice, the alleged payment dated 6.08.2004 and also few photographs.
4. This Court through order dated 15.12.2009 directed the respondents not to interfere with the alleged peaceful possession and enjoyment of the subject property until further orders. The respondents filed counter affidavit and also a petition to vacate the interim order dated 15.12.2009.
5. The averments in counter affidavit, are as follows:
i) The land covered by Sy.No.70/1 to an extent of Ac.3.54 cents (classified as Cheruvu Poramboke);
ii) The land covered by Sy.No.70/3 to an extent of Ac.0.12 cents (classified as burial ground); and
iii) The land covered by Sy.No.70/2 to an extent of Ac.0.12 cents excluding burial ground site(Ac.0.17 cents) is abandoned tank.
6. The respondents claim to have handed over the land covered by abandoned tank to Housing Corporation, Visakhapatnam for development into housing colony. The Housing Corporation tried to take up construction activity in petition land. The petitioners and a few of the encroachers of this Government land filed O.S.No.1134 of 2006 in the Court of II Additional Senior Civil Judge, Visakhapatnam. The petitioners herein filed I.A.No.562 of 2006 for grant of temporary injunction. Through order dated 5.04.2007, the trial Court, allowed I.A.No.562 of 2006 and granted temporary injunction to the plaintiffs. The respondents filed C.M.A.No.68 of 2007 in the Court of Principal Senior Civil Judge, Visakhapatnam. The learned Judge through order dated 26.06.2008 allowed the appeal and dismissed I.A.No.562 of 2006. The respondents further averred that on 15.09.2009, the subordinates of 3rd respondent rushed to the land and evicted the encroachers on 15.09.2009 and the land is now in the possession of the Government. It is further averred that the writ petition is filed on 10.12.2009 and interim order was passed on 15.12.2009 and by which time as the petitioners were out of possession, the alleged interference with petitioners’ possession is untenable and does not arise. The petitioners’ possession of the land, as alleged by them, does not arise and the same is invented for the purpose of the petition. The respondents further deny each and every one of the allegation in the writ affidavit. It is categorically stated that the petitioners are not in possession of the land. Hence, the respondents not only pray for vacating the interim order but also for dismissing the writ petition.
7. Sri Mavidi Rama Rao, learned counsel for the petitioners vehemently contends that the petitioners were and are in possession of the petition land. The petitioners have admittedly filed a suit in O.S.No.1134 of 2006 and on the showing of respondents, on 5.04.2007 ad interim injunction was granted and the same was in force till 26.08.2008. Firstly the respondents referred to have given possession of petition land to Housing Corporation in the year 2007. In this context, the submission of learned counsel for the petitioner is that through temporary injunction granted in I.A.No.562 of 2006, the respondents are certainly prevented from entering into the petition land or giving possession to third parties. Therefore, the plea that the possession was given to Housing Corporation in the year 2007 needs to be considered with care and caution and this Court ought not to be swayed by the stand taken by the Government/respondents. The learned counsel further contends that the petitioners are in continuous possession of petition land for the past several decades. They have certainly perfected the title by prescription and adverse possession. Therefore, even otherwise the respondents cannot either interfere with the possession of the petitioners or forcibly claim to have taken possession of petition land from the petitioners. Finally it is contended that the stand taken in the counter affidavit is completely lopsided and is required to be ignored from consideration.
8. The learned Government Pleader for Revenue contends that the prayer in the writ petition is two fold. One relates to inaction of respondents in not issuing pattas to the petitioners in spite of repeated requests alleged to have been made by them, and to direct the respondents to consider the cases of the petitioners for grant of pattas. Therefore, the consideration of petitioners prayer is firstly depending upon the nature of land, the alleged possession of petitioners and representations, if any, proved to have been made by the petitioners. In support of his submission, the learned Government Pleader relies upon the stand of respondents in paragraph No.13 of the counter affidavit, viz., the petitioners have never approached this office and filed any representations. Secondly the learned Government Pleader contends that the petitioners are not justified in complaining inaction in disposing of the representations. By placing strong reliance upon the findings recorded by the Senior Civil Judge in C.M.A.No.68 of 2007, the learned Government Pleader contends that the case of petitioners in the suit filed for perpetual injunction at interlocutory stage, prima facie, is considered and the petitioners are found to be not in possession. The findings recorded by the learned Senior Civil Judge in C.M.A.No.68 of 2007 cannot be ignored and with due consideration of these findings the other prayers of the petitioners are not available. The prayers do not come within the scope of Article 226 of the Constitution of India. The learned Government Pleader finally contends that the petition land is not available for assignment, and petitioners are not in possession of the petition land and findings recorded by the competent Civil Court are against the petitioners. For all the above reasons, the learned Government Pleader prays for dismissal of the writ petition and also vacation of the interim order.
9. Now the point for consideration is whether the petitioners are entitled for Mandamus declaring the action of respondents in not issuing pattas to the petitioners herein for the petition land, as illegal and contrary to the revenue laws.
10. The petitioners admit that the petition land is Government land. The cases of persons, who can be considered for grant of assignment, either on account of the eligibility or on account of long standing possession is well defined by the Board Standing Orders. The Government Orders issued from time to time are also available on the subject. The petitioners firstly claim consideration of their cases on the strength of long and settled possession of the petition land such plea was not believed by a competent civil Court. Before this Court for considering issuance of Mandamus as is required, the petitioners are to first show the existence of a right in their favour, and failure on the part of the respondents in recognising their right, in spite of a demand made by the petitioners.
11. In the case on hand, the petitioners definitely failed on this aspect of the matter at the hustings. Further the petitioners claim to be in possession of the petition land. In the counter affidavit, it is asserted before this Court that the petitioners have suffered adverse order in C.M.A.No.68 of 2007, not only that C.M.A was allowed but finally the suit filed by petitioners was also dismissed. Either allowing C.M.A or dismissal of suit would certainly go against the contentions now canvassed by the petitioners in this writ petition. Though these findings are recorded at interlocutory stage, even for the purpose of appreciating the grievance of the petitioners for grant of any relief, I am inclined to give required legal effect to the findings recorded by the learned Senior Civil Judge in C.M.A. For this reason, it is held that the petitioners are not entitled for any relief. The petitioners failed to establish that a representation in fact is pending with respondents. On the contrary, the definite case of respondents is no representation is pending. The land as stated in the counter affidavit is firstly classified as Cheruvu Poramboke, Burial Ground and Abandoned Tank. These lands are in the list of POT. This Court cannot direct by way of Mandamus to the respondents to consider the cases of the petitioners for any assignment as the petitioners failed in plea and proof.
12. For the foregoing reasons, I see no merit in the writ petition and the same is accordingly dismissed. No order as to costs. As a sequel, miscellaneous petitions pending, if any shall stand closed.
S.V. BHATT, J.
16th December, 2014 Js.