IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) SATURDAY, THE EIGHTEENTH DAY OF OCTOBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.39085 of 2012 and 1757 of 2013
WP.No.39085 of 2012: BETWEEN
Karatam Narayana Rao and two others.
AND ... PETITIONERS Revenue Divisional Officer, Special Assistant Agent, Jangareddygudem, West Godavari District and two others.
...RESPONDENTS Counsel for the Petitioners: MR. C. RAMACHANDRA RAJU Counsel for the Respondents: GP FOR REVENUE MR. V. VENUGOPALA RAO
WP.No.1757 of 2013: BETWEEN
Basha Venkanna and three others.
AND ... PETITIONERS The Special Deputy Collector, Tribal Welfare, K.R. Puram, West Godavari District and others.
...RESPONDENTS Counsel for the Petitioners: MR. V. VENUGOPALA RAO Counsel for the Respondents: GP FOR REVENUE MR. C. RAMACHANDRA RAJU The Court made the following: COMMON ORDER:
These writ petitions relate to same subject matter and between the same parties.
2. In the circumstances, as detailed hereunder, this order considers the legality and correctness of the proceedings of the RDO dated 19.01.2013, which is impugned in WP.No.1757 of 2013.
The parties, therefore, are referred to as they are arrayed in the said writ petition.
3. The facts, in brief, are as follows:
(a) Petitioners approached the Special Deputy Collector, Tribal Welfare, first respondent herein, by a petition, seeking restoration of the petition schedule land, which is numbered as S.R.No.262 of 1984, on the allegation that the aforesaid land is their ancestral property and that they were forcefully dispossessed from the said land by respondents 4 to 6. Petitioners also approached this Court by WP.No.7147 of 1997 complaining of inaction on the part of the first respondent in taking steps for restoration of the land on the ground that the petitioners are members of Schedule Tribe and since they are evicted forcefully, the first respondent is duty bound to restore the land in terms of the provisions of A.P. Schedule Area Land Transfer Regulation, 1959 (1 of 1959) read with Regulation 1 of 1970. The said writ petition was disposed of by order dated 10.04.1997 with a direction to the Special Deputy Collector (Tribal Welfare), K.R. Puram to dispose of the representation of the petitioners, as expeditiously as possible, within a period of four (4) months after conducting necessary enquiry.
(b) The first respondent, thereafter, issued notice to the respondents and by order dated 22.12.1997 allowed the said eviction petition. It may be noted, at this stage, that the schedule of the land mentioned in the said eviction petition, describes the land as ”R.S.No.Old Patta No.17, Gallavaridguem village within the boundaries noted in the Reg.Doc.No.174/1933 and extent is described as Ac.40.00 out of Ac.80.00.” Aggrieved thereby, respondent No.4 preferred an appeal, being SRA.No.3 of 1998, which was, however, dismissed by the Agent to the Government, West Godavari at Eluru by order dated 26.11.2001. Similarly, an appeal filed by the respondent No.6, being SRA.No.4 of 1998 was also dismissed simultaneously with SRA.No.3 of 1998. Further representation before the Government was also dismissed under G.O.Ms.No.111 Social Welfare (LTR.1) Department dated 30.09.2002.
(c) It appears that questioning the said appellate and revisional orders, the husband of respondent No.5 filed WP.No.15197 of 2002, similarly, respondent No.6 also questioned the same by filing WP.No.22929 of 2001 and respondent No.4 filed WP.No.20733 of 2002. All the said writ petitions were, however, dismissed by this Court on 14.08.2006 against which it appears that WA.Nos.946 and 947 were preferred by respondents 4 and 5 and WA.No.388 of 2007 was preferred by respondent No.6, which are stated to be pending.
(d) Meanwhile, the order of eviction, passed by the primary authority was executed and possession was delivered to the petitioners by conducting panchnama on 26.02.2002. Respondents 4 to 6, however, complained by approaching the Revenue Divisional Officer, respondent No.2, by a representation dated 13.01.2012 that the action of the Mandal Revenue Officer in executing the orders in SR.No.262 of 1984 dated 22.12.1997 is excessive and instead of executing the said order to the extent of Ac.40.00 out of Ac.80.00, respondents 4 to 6 were dispossessed from further extent of Ac.40.00. In other words, the complaint of respondents 4 to 6 is that though the execution could have been confined to petition schedule land of Ac.40.00 it was, however, executed in excess covering Ac.80.00. They, therefore, sought that appropriate enquiry be conducted and also sought direction to redeliver the excess land over and above the eviction order in SR.No.262 of 1984 and restore the said land to respondents 4 to 6.
(e) Respondent No.4 also approached this Court in WP.No.12438 of 2012 complaining inaction on the part of the RDO in considering the said representation. The said writ petition was disposed of on 26.04.2012 directing the RDO to consider the explanation dated 13.01.2012 file by respondents 4 to 6 on its own merits and pass appropriate orders. Consequently, the RDO is stated to have passed a further order dated 29.06.2012 declining to entertain the application of respondents 4 to 6 dated 13.01.2012 on the ground that the issue is subjudice in three writ appeals, referred to above, which are pending before this Court.
4. Aggrieved thereby, respondents 4 to 6 filed WP.No.39085 of 2012 complaining non-consideration of their representation dated 13.10.2012 on merits and as mentioned above, vide orders of this Court dated 28.12.2012 in WPMP.No.49607 of 2012, interim direction was given to the RDO and Tahsildar to consider the case of the petitioners therein for delivery of possession of Ac.40.00 in accordance with law. Thereafter, the present impugned order dated 19.01.2013 is passed by the RDO directing the Tahsildar to take necessary action to deliver possession of Ac.40.00 to the petitioners therein and report compliance. By order dated 24.01.2013 passed by this Court, the present WP.No.1757 of 2013 was directed to be listed along with WP.No.39085 of 2012 and status quo obtaining as on that date of passing of the order was directed to be maintained till then.
5. In view of the later developments including directions issued by this Court in WPMP.No.49607 of 2012 in WP.No.39085 of 2012 dated 28.12.2012, the Revenue Divisional Officer, first respondent therein, has passed further order dated 19.01.2013, which is questioned by the petitioners in WP.No.1757 of 2013. Thus, in view of the said later writ petition, the cause in WP.No.39085 of 2012 has, in reality, become infructuous.
6. In the aforesaid factual background, it has to be considered as to whether the direction to restore Ac.40.00 of land to respondents 4 to 6 is justified on the facts of this case.
7. Mr. V. Venugopala Rao, learned counsel for the petitioners, filed a counter in WP.No.39085 of 2012 and also filed a common synopsis in both the writ petitions on the ground that the contentions as raised in WP.No.39085 of 2012 are hit by res judicata and are subject matter of WA.No.946 of 2006 and batch. However, since the said WP.No.39085 of 2012 has become infructuous, as noted above.
8. One of the contentions raised by the learned counsel for the petitioners is that the petitioners sought eviction in SR.No.262 of 1984 and that in the schedule appended to the said eviction petition, particulars of the said land is specifically mentioned as R.S.No.Old Patta No.17, Gallavaridguem village within the boundaries noted in the Reg.Doc.No.174/1933. Learned counsel, therefore, submits that the extent has to be treated as approximate and the boundaries as mentioned in the schedule would be decisive. Elaborating further, learned counsel submits that since the boundaries always prevail over the extent, the execution of the order in SR.No.262 of 1984 cannot be said to be excessive, as the land within the boundaries had been delivered to the petitioners and consequently, respondents 4 to 6 are not entitled to restoration of alleged excess land of Ac.40.00.
9. The aforesaid contention is seriously opposed by Mr. C. Ramachandra Raju, learned counsel appearing for respondents 4 to 6 by placing strong reliance upon the order of ejectment passed by the Special Deputy Collector (Tribal Welfare) and according to the learned counsel, the said order had at more than one place refers to the extent covered by the eviction proceedings, being Ac.40.00 and the same is explicitly shown in the schedule of land appended to the said order. Learned counsel, therefore, submits that when the eviction is sought for an extent of Ac.40.00 out of Ac.80.00, the execution thereof cannot be to the extent of Ac.80.00. Learned counsel also submits that the correctness or otherwise of the eviction order to the extent of Ac.40.00 is presently subjudice in WA.No.946 of 2006 and batch, referred to above and as such, to the extent of the said Ac.40.00, no relief is sought for by respondents 4 to 6 and their claim merely refers to additional extent of Ac.40.00 delivered to the petitioners in the guise of execution order in SR.No.262 of 1984.
10. Counter affidavit has also been filed on behalf of respondent No.2 but the same merely reiterates the various dates and events since the initiation of the eviction case SR.No.262 of 1984 including reference to various legal proceedings taken by the authorities, which are already set out in detail in opening paras above and justifies the passing of the impugned order in view of the direction issued by this Court dated 28.12.2012 in WPMP.No.49607 of 2012 in WP.No.39085 of 2012.
11. During the course of hearing, on 04.07.2014, since it was felt that it was essential to examine the contents of the eviction petition SR.No.262 of 1984 and in particular, the schedule appended thereto, the hearing was adjourned to enable the learned counsel for the petitioners to produce the same. However, even after granting sufficient time, the said document has not been placed before the Court. Hence, the writ petitions were heard finally on 11.09.2014 and reserved for orders.
12. Before considering the issue involved it is necessary to clarify one of the contentions of the learned counsel for the petitioners.
It is not in controversy that by order in SR.No.262 of 1984, eviction order was passed to the extent of Ac.40.00 in favour of the petitioners and that order was confirmed in appeal, revision as well as by a learned single Judge in WP.No.20733 of 2002 and batch dated 14.08.2006 and all those orders are now subject matter of WA.No.946 of 2006 and batch. Hence, to the extent of eviction relating to Ac.40.00 of land and so far as its execution, which was already carried out, there is no controversy between the parties and the rights of the parties have to await adjudication in the batch of writ appeals, referred to above. Secondly, the grievance in the present writ petition, being not subject matter of that batch of writ appeals, concerning alleged delivery of Ac.40.00 of land to respondents 4 to 6 is required to be adjudicated independently.
13. One of the crucial aspects that need to be kept in mind is the schedule of land appended to SR.No.262 of 1984. For the sake of convenience, the schedule of land is extracted hereunder:
SCHEDULE OF LAND :
Name of the Village: Gallavarigudem, H/o. Buttayagudem. Name of the Mandal: Buttaigudem.
SR.No. R.S.No. Extent Whether the claim is allowed or not 262/84 Old Patta Ac.40.00 Petition of the Petitioners No.17 out of are allowed Gallavarigudem Ac.80.00 Village (within the boundaries noted in the Reg.Doc.No.174/1933)
14. The schedule above refers that the extent is Ac.40.00 out of Ac.80.00. Apart from that, in the order of eviction, in the opening paragraphs, while giving a brief history, it is specifically mentioned that “… The petitioners herein have filed the petition before the Hon’ble High Court of Andhra Pradesh stating that an extent of Ac.40.00 situated in Gallavaridguem village was their ancestral properties and this Petition schedule land was occupied by the respondents and it may be restored to them …” Eviction Petition, therefore, prima facie shows that it is to the extent of seeking eviction from Ac.40.00 out of Ac.80.00. Thus, the parties were specific in seeking the extent and it is not as if that only the boundaries were mentioned without indicating the extent. Evidently, the petitioners had categorically stated and sought for eviction to the extent of Ac.40.00 out of Ac.80.00. Even in the order of the learned single Judge in WP.No.20733 of 2002 and batch dated 14.08.2006, in the opening paragraphs, the learned single Judge noticed that “In the schedule to the said notices, the land in question was described as Ac.40.00 land out of Ac.80.00 covered by Old Patta No.17, which respondents 5 to 8 (in the said writ petition, who are petitioners herein) herein claimed as ancestral property and sought restoration alleging that they were forcibly dispossessed …” Thus, the contention put forward by the learned counsel for the petitioners that the boundaries in the registered document prevail over the extent cannot justify the execution to the extent of Ac.80.00. When the eviction petition specifically seeks eviction to the extent of Ac.40.00, the execution of the said order should only be with regard to the extent and not over and above the extent mentioned therein.
15. The impugned order dated 19.01.2013, however, has not considered any of these aspects and merely in one sentence has directed the Tahsildar to take necessary action to deliver possession of Ac.40.00 acres to respondents 4 to 6 herein. It may be noticed that there are two directions of this Court viz. first direction being the order passed by the learned single Judge in WP.No.12438 of 2012 dated 26.04.2012, which is extracted hereunder:
“5. In the circumstances, respondents 2 and 3 are directed to consider the said application, dated 13.01.2012, filed by the petitioner on merits and pass appropriate orders in accordance with law at an early date.”
Further direction being the order in WPMP.No.49607 of 2012 in WP.No.39085 of 2012 dated 28.12.2012, as follows:
“There shall be interim direction to respondents 1 and 2 to consider the case of the petitioner for delivery of possession of Ac.40.00 covered under old patta No.17 of Buttaigudem Village in accordance with law within two months from the date of receipt of a copy of this orders.”
It would be noticed that in both the said directions, the RDO was required to consider the application of the petitioners/respondents 4 to 6 herein for redelivery of Ac.40.00 in accordance with law.
16. The order impugned dated 19.01.2013, however, contains no consideration whatsoever and straightaway direction to restore the land is given. The said order, therefore, appears contrary to the directions of this Court, referred to above and as such, the order impugned cannot be sustained also for the reason that it appears to have been passed without notice and opportunity of hearing to the petitioners herein.
17. In view of the above, the Revenue Divisional Officer is directed to consider afresh the application of the respondents 4 to 6 dated 13.01.2012 on merits and after notice and opportunity of hearing to petitioners as well as respondents 4 to 6 and pass appropriate orders, in accordance with law, expeditiously and in any case, within a period of two (2) months from the date of receipt of a copy of this order.
It is made clear that the second respondent/RDO shall examine the matter independently and uninfluenced by any of the findings or observations in this order.
In the result, WP.No.39085 of 2012 is dismissed as infructuous and WP.No.1757 of 2013 is allowed, accordingly, by directing respondent No.2 to examine the representation of respondents 4 to 6 afresh and pass appropriate orders thereon within a period of two (2) months from the date of receipt of a copy of this order. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J October 18, 2014 DSK