WP/26900/2006 of Pedamalla Rama Rao S/o Sri Ramabrahmam, Vs the State of Andhra Pradesh rep byprincipal Secretary, on 27 December 2006

ORDER:

Petitioner No.1 is the owner of land admeasuring Acs.4.40 centsin R.S.No.29 and petitioners 2 and 3 are the owners of landadmeasuring Ac.0.50 cents each in R.S.No.237/4 situated atUndrajavaram Mandal in West Godavari District. They allege that thereis earthen road (puntha) running from East to West, which is the onlypassageway to the petitioners’ and other owners of the agriculturallands. The land on the southern side of the road margin was encroachedupon by number of persons. Repeated complaints to respondents 2 to 4about this proved futile. Therefore, husbands of petitioners 2 and 3 andothers filed O.S.No.529 of 1996 on the file of the Court of the PrincipalJunior Civil Judge, Tanuku, which was dismissed on 05.09.2005. In thesaid suit, a decree for permanent injunction against as many as 27encroachers from making constructions was sought. Be that as it is, thepetitioners filed O.S.No.748 of 2005 on the file of the Court of IAdditional Junior Civil Judge, Tanuku, for permanent injunction againstthe defendants 1 and 2/respondents 5 and 6 herein from causing any obstruction fromusing the passage/puntha and for mandatory injunction to defendants 3 to 5 therein/respondents 1 to 3 herein to prevent encroachments ofpuntha. It is their case that the civil Court, while ordering notice inI.A.No.3013 of 2005 in O.S.No.748 of 2005, ordered status quo on12.12.2005, and in spite of the same, respondents 3 and 4, namely, theRevenue Divisional Officer (RDO) and the Mandal Revenue Officer(MRO) are proceeding with the proposal to convert the puntha intohouse sites for distributing the same to the occupants/encroachers. Therefore, they filed instant writ petition seeking a Mandamus declaringthe action MRO in converting the puntha into house sites and proposingto grant the same as house site pattas to the encroachers as illegal andarbitrary.

The petitioners allege that respondent No.6 and othersencroached the land causing obstruction to the passage way/puntha.Except respondent No.6, none of the other encroachers is made a party. Secondly, the petitioners have already approached the civil Court byfiling O.S.No.748 of 2005, in which RDO and MRO are arrayed asdefendants 4 and 5. This Court has perused the written statement filed by MRO inO.S.No.748 of 2005, in which the following averments are made.O.S.No.748 of 2005, in which the following averments are made.

This defendant humbly submits that because of theoccupations made by the several people in the Governmentpuntha poramboke, there will not be any objection or nuisanceto the plaintiffs and the plaintiffs have no right to question thesame. This defendant humbly submits that the husbands of theplaintiffs 2 and 3 and others filed a suit in O.S.No.529/96 on thefile of the PJCJ, Tanuku in respect of the same schedulepuntha and the same was dismissed and there is no appealagainst the said suit and so it became final. Thus the presentsuit is barred by principles of Resjudicata. The plaintiffs are wellaware about the said suit and wantonly suppressed the materialfacts before the Hon’ble court and filed this suit only with a viewto prevent the Government officials from discharging theirExecutive powers and to grab the Government property.

Conclusion

In view of the above, this Court is not convinced with thegrievance of the petitioners about their inconvenience. This Courthastens to add that when once the petitioners have already availed thecommon law remedy, they cannot maintain parallel proceedings underArticle 226 of the Constitution of India. This is settled principle of law.The petitioners, therefore, may approach the civil Court and takeappropriate action for redressal of their grievance. In this writ petition, norelief can be granted. It is also made clear that as and when the civilCourt decides the matter, consideration shall not be influenced by any ofthe observations made hereinabove.

The writ petition, with the above observations, is accordinglydismissed. No costs.

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(V.V.S.RAO, J)

27[th] December, 2006ghn