HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
WRIT PETITION No.21702 of 2020
ORDER:
The husband of the petitioner was in possession of 1111 sq.yards of land in T.Survey No.1917, 1918, 1920, 2000, 2002 and 1922, Ward No.5, Block No.25 situated in Annapurnammapeta, Rajahmundry, East Godavari Districrt. He claimed ownership over the property on the ground that he had entered into an agreement of sale for purchase of the property and had paid some amount of money. 3rd respondent had filed O.A.No.224 of 2017 before the Endowment Tribunal claiming that the husband of the petitioner was an encroacher and has to be evicted. An exparte decree came to be passed against the husband of the petitioner on 31.07.2019 and he was evicted from the land. Aggrieved by the said exparte order, the husband of the petitioner had approached the Tribunal by way of an application to set aside the order along with an application to condone the delay. While the applications were pending, the respondents started fencing the land due to which, the husband of the petitioner approached this Court by way of W.P.No.16916 of 2019 which was disposed of by an order dated 06.12.2019 directing the 2nd respondent to dispose of the application to condone the delay and for setting aside the decree and judgment dated 31.07.2019 certain observations were also made by this Court. The applications filed before the Tribunal were allowed by the Endowment Tribunal wherein the earlier exparte decree dated 31.07.2019 was set aside on 20.01.2020. Thereafter, the 2 husband of the petitioner passed away on 04.08.2020. At that stage, respondents 3 and 4 issued open auction notice date 04.11.2020 to lease out the said property. Aggrieved by the said issuance of the auction notice, the petitioner has now approached this Court for a declaration that the issuance of the notification is invalid, arbitrary, illegal and for setting aside the same. By the time, the petitioner approached this Court the auction had been conducted. On 24.11.2020 this Court had granted an interim direction to maintain status-quo obtaining as on that day and the said order has been extended from time to time.
2. The 4th respondent has filed a counter affidavit stating that the husband of the petitioner had been dragging on the matter with a view to avoid eviction and the amount paid by the husband of the petitioner under the process of sale had been adjusted towards use and occupation of the premises. The 4th respondent further submitted that the public auction was held on 19.11.2020 and the highest bidder who had obtained license holder rights for a period of 11 years was also inducted into possession of the property in the sense possession was handed over on 23.11.2020 under proceedings R.C.No.L2/4038107/2020 of the Sub-Commissioner, Endowment Department and as such, nothing remains in the writ petition. The stand taken by the 4th respondent is that since the husband of the petitioner was not in possession of the property, the question of dispossessing the petitioner from the 3 subject land does not arise. The 3rd respondent also filed a counter reiterating the above facts and contentions.
3. The further ground taken by the 4th respondent is that the petitioner cannot maintain the writ petition on the ground that she is legal heir of Sri K.Stephen David and seek a declaration in her favour.
4. Sri K.Madhava Reddy, learned Standing Counsel for Endowments submits that the husband of the petitioner was already evicted from the property and has been declared as an encroacher. He further submits that the observations of this Court in W.P.No.16916 of 2019, dated 06.12.2019 that the petitioner has no title to the property as no conveyance was executed in favour of the petitioner, were sufficient to non-suit the petitioner herein. He further submits that the petitioner has not chosen to file any application before the Tribunal to show that she is the legal heir of Sri K.Stephen David and as such, she is not entitled to maintain the present writ petition.
5. The learned Assistant Government Pleader for Endowments reiterates and supports the stand taken by Sri K.Madhava Reddy, learned Standing Counsel for Endowments. The learned Assistant Government Pleader also submitted that the petitioner has no locus to file the present writ petition.
6. Sri Ghanta Rama Rao, learned Senior Counsel appearing for Sri Ghanta Sridhar, learned counsel for the petitioner submits that the petitioner had already filed a memo before the Tribunal stating the fact that her husband had passed away. 4 Despite the filing of the memo, the respondents have not taken any steps to implead her and as such, the O.A. would have to be treated as abated and as such, there is no declaration by the Tribunal that the husband of the petitioner is an encroacher.
7. The pleadings in the counter affidavit as well as submissions made by the respondents on the locus of the petitioner is that the petitioner is a third party to the O.A proceedings and as such, is not entitled to maintain the present writ petition.
8. However, a closer look at the pleadings in the affidavit would go to show that the objection taken is a technical objection in relation to the proceedings in the O.A and not on the ground that the petitioner is not the wife of Sri K.Stephen David. At this stage, the contention of Sri G.Rama Rao, learned Senior Counsel would have to be taken into account that the failure of the respondents to implead the legal heirs of Sri K.Stephen David would result in the abatement of the O.A itself. In as much as proceedings cannot be initiated or continued against dead persons. In those circumstances, the question of whether the petitioner herein is a party to the O.A or whether she is the legal heir to Sri K.Stephen David in the said O.A would not be relevant.
9. In the absence of any declaration by the Tribunal that Sri K.Stephen David is an encroacher on the said land, the petitioner as the wife of Sri K.Stephen David would be entitled to 5 maintain the present writ petition to protect her interest as the legal heir of Sri K.Stephen David.
10. In these circumstances, the present writ petition is being disposed of with the following directions:
1) It would be open to the respondents to either take steps to bring the L.Rs of Sri K.Stephen David on record and continue O.A.No.224 of 2017 after obtaining necessary orders of setting aside the abatement of the proceedings or to initiate fresh O.A against the legal heirs of Sri K.Stephen David for obtaining such declarations as the respondents may deem fit.
2) The declaration that Sri K.Stephen David is an encroacher of the land by the Tribunal is not in existence in more on account of the order dated 31.07.2019 which set aside the exparte decree. In such a situation, unless and until a declaration that Sri K.Stephen David was an encroacher is obtained, the eviction of Sri K.Stephen David would require to be reversed.
3) In these circumstances, there shall be a status-quo in relation to the land in question for a period of one month to enable the respondents to take appropriate action.
4) In the event the respondents choose not to take any action within the said period, it would be open to the 6 petitioner to take appropriate steps to obtain recovery of possession of the property.
11. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J.
07.01.2021 RJS 7 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.21702 of 2020 07.01.2021 RJS