WA/1408/2003 of P.Mallamma Vs The District Collector, on 30 December 2010

Conclusion

HON’BLE SRI JUSTICE A. GOPAL REDDYANDHON’BLE SRI JUSTICE C.V.RAMULU

WRIT APPEAL No.1408 of 2003

Dated: 30-12-2010

Between:

Pathapally Malla Reddy (died) per L.Rs.& Others

AND

The District Collector, Mahabubnagar District at Mahabubnagar& Others.

…AppellantsRespondents.

This Court made the following:

HON’BLE SRI JUSTICE A. GOPAL REDDY

ANDHON’BLE SRI JUSTICE C.V.RAMULU

WRIT APPEAL No.1408 of 2003

JUDGMENT:(Per Hon’ble Sri Justice A.Gopal Reddy)

This writ appeal under Clause 15 of Letters Patent is directedagainst the order of the learned single judge of this Court made inW.P.No.24808 of 1996, dated 25.7.2003 dismissing the writ petitionholding that the order of the Inams Tribunal granting occupancy rightscertificate cannot be said to suffer from error of jurisdiction and thatthough the validity of occupancy rights certificate issued under the A.P.(Telangana Area) Abolition of Inams Act and Rules made thereunderis not directly in question, still this Court can go into the question as acollateral issue, and therefore, it must be held that the petitioners havefailed to establish any enforceable right in the writ petition and no reliefcan be granted.

The writ petitioners claim to be the protected tenants of landadmeasuring Ac.5.26 guntas in Sy.No.702 of Burgula village. Acertificate under Section 38-E of the A.P. (Telangana Area) Tenancyand Agricultural Lands Act, 1950 was issued in favour of Anthi Reddyand his brother Chandra Reddy. After abolition of Inams under theA.P. (Telangana Area) Abolition of Inams Act, 1955, the landlord of thefirst petitioner submitted an application for grant of occupancy rightscertificate (ORC) and that the Revenue Divisional Officer (InamsTribunal), Mahabubnagar issued ORC. In spite of the same, the grampanchayat is trying to occupy the said land, in respect of which ORChas been obtained, for construction of Anganwadi school by use of force and that the gram panchayat has already occupied half of theland in Sy.No.702 belonging to Chandra Reddy and distributed house-sites to the villagers without paying compensation and therefore, theaction of the gram panchayat is in violation of petitioners’ rights underArticle 300-A of the Constitution of India. Therefore, the petitionersfiled the present writ petition seeking a writ of mandamus declaringthat the respondents have no power or authority to take possessionand allot the petitioners land measuring Ac.2.33 gts. out of Sy.No.702,situated at Burgula village, Farooqnagar Mandal, MahabubnagarDistrict to the third parties without following due process of law.

A counter affidavit has been filed by the second respondent-gram panchayat stating that the petitioners or their ancestors werenever in possession of the land to an extent of Ac.5.20 gts. inSy.No.702. Late Chandra Reddy had sons viz., Rami Reddy, MallaReddy (first petitioner) and Narasimha Reddy. Anthi Reddy had noissues and the first petitioner is not the son of Anthi Reddy. Thelandlords/pattadars have got rights over the subject-land. Anapplication was filed by the first petitioner for grant of ORC before theRevenue Divisional Officer in respect of various extents of lands otherthan the land in Sy.No.702. An extent of Ac.2.25 gts. of land out ofAc.5.20 gts. in Sy.No.702 was acquired by the Government for house-sites 15 years back and that the government took possession of thesame and some houses were also constructed in the said land. Theremaining extent of land was given to the gram panchayat by the legalheirs of late Ramakrishna Rao, Srinivas Rao, Venkateswara Rao, whoare the actual pattadars, for public purpose and that the grampanchayat has taken steps to construct Anganwadi Building. Whenthe construction work was taken up and when it was completed up to

basement level, the above writ petition has been filed. The land inSy.No.702 is situated in the heart of village and no cultivation is beingcarried on in the said land and that the railway authorities constructedrailway station in the said land long back. At that time, no objectionwas raised by the petitioners. Though the petitioners’ application forORC was pending before the Revenue Divisional Officer, they havenot impleaded the Revenue Divisional Officer as a party respondent tothe writ petition. The dispute pending before the Revenue DivisionalOfficer is family partition dispute among other brothers and thepetitioners but not pertaining to the land in Sy.No.702. The firstpetitioner and his brothers viz. Ram Reddy and Narsimha Reddy filedcase No.4952 of 1995 before the Revenue Divisional Officer,Mahaboobnagar ignoring the land in Sy.No.702. A reply affidavit hasbeen filed by the petitioners submitting that the first petitioner wasadopted son of Anantha Reddy. An extent of Ac.2.25 guntas of landout of Ac.5.25 guntas in Sy.No.702 was acquired by the Governmentfor house-sites, and that an award was passed on 31.3.1980 and onreferring the matter to civil Court under Section 30 of the LandAcquisition Act for apportionment of the compensation in O.P.No.4747of 1980 on the file of Additional Subordinate Judge, Mahabubnagar,the same was apportioned between the first petitioner and his brothersby judgment, dated 27.12.1983 in the said O.P. Even the LandAcquisition Officer in his award, dated 31.3.1980 recorded a findingthat the first petitioner and his father are tenants of the said land.

The learned single judge after reproducing the award, recordeda finding that so far as the proceedings before the Revenue DivisionalOfficer-Inams Tribunal, Mahabubnagar are concerned, the materialplaced by the petitioners itself would show that sons of Narasimha Reddy and sons of Rami Reddy, who are brothers of Malla Reddy filedan application for granting ORC and that they did not claim any ORCin respect of the land comprised in Sy.No.702. Late Malla Reddy hadfiled an objection petition, dated 21.10.1995 in the application filed byhis nephews, which would show that Sy.No.702 did not form part of theclaim for award of compensation. Further late Malla Reddy also filedan application in Case No.4952 of 1995 on 21.10.1995 praying theRevenue Divisional Officer to issue ORC in his favour specifying theinterest of other persons mentioned therein. The ORC, dated16.3.2000 was issued in respect of Sy.No.702 admeasuring Ac.3.26gts. and one cannot comprehend as to how the total extent of land inSy.No.702 is Ac.3.26 gs. when admittedly major chunk of land wasalready acquired in 1980. Now, we are told that against the orders ofgrant of ORC, an appeal was filed before the Joint Collector,Mahabubnagar, which was pending on the date when the writ petitionwas disposed of.

Admittedly, the grant of ORC in favour of the writ petitioners bythe Revenue Divisional Officer is not the subject-matter of dispute inthe writ petition. What all the writ petitioners prayed is to direct therespondents not to interfere with the possession of the petitioners overthe land in respect of which ORC was issued by the RevenueDivisional Officer. When it is admitted in the counter affidavit filed bythe Executive Officer of second respondent-gram panchayat that ORCwas issued in favour of the writ petitioners, if the gram panchayat isentitled to ORC under the gift deed executed by heirs of RamakrishnaRao, it has to move the Revenue Divisional Officer for grant of ORC inits favour. But it is nowhere stated by the second respondent-grampanchayat that ORC was granted in its favour to claim right in the

remaining extent of land after leaving the land to an extent of Ac.2.25guntas which was acquired and subject-matter of award, dated27.12.1983 in O.P.No.4747 of 1980. When the writ petitioners havealready obtained ORC and having noticed the same, the learnedsingle Judge cannot give an adverse finding particularly when theORC is not challenged either by the gram panchayat or by the landholders/pattadars. Therefore, the finding recorded by the learnedsingle judge that the order of the Inams Tribunal granting occupancyrights certificate cannot be said to suffer from error of jurisdiction andthat though the validity of occupancy rights certificate issued under theA.P. (Telangana Area) Abolition of Inams Act and Rules madethereunder is not directly in question, still the Court can go into thequestion as a collateral issue, is unwarranted and the same is setaside. Further during the course of appeal, the order of the JointCollector, Mahabubnagar in Case No.F2/20/2005, dated 30.3.2007 isfiled which shows that the grant of ORC in favour of the writ petitionershas been confirmed to the remaining extent of land after leaving theland acquired in award, dated 27.12.1983 in O.P.No.4747 of 1980. Ifthat be the case, the respondents cannot interfere with the possessionof the petitioners over the land in respect of which, they have obtainedORC. In that view of the matter, the petitioners are entitled to the reliefas claimed in the writ petition.

Accordingly, the Writ Appeal is allowed. Consequently, the writpetition is allowed and the respondents are directed not to interferewith the possession of the petitioners over the land to an extent ofAc.2.33 gts. in Sy.No.702, situated at Burgula Village, FarooqnagarMandal in respect of which, the petitioners have obtained ORC,without following due process of law. No order as to costs.

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A.GOPAL REDDY, J.

_______________

C.V.RAMULU, J.

DECEMBER 30, 2010

Tsr.