Ch.Souri Raja Perumallu vs The District Collector
2021 Latest Caselaw 1783 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

                WRIT PETITION No.5802 of 2020

ORDER:

This Writ Petition is filed for a Mandamus declaring

the action of the 2nd respondent in not taking steps to remove

the unauthorized occupation and illegal constructions made

by the unofficial respondent.

The petitioners before this Court seek a relief of

Mandamus alleging that the 4th and 5th respondents have

made illegal constructions. Number of representations which

were made are highlighted. The reliance is placed on an

endorsement given by the 3rd respondent that the land

occupied by the 4th and 5th respondents in R.S.No.20/4 and

24/1 is identified as a 'municipal latrine land'.

The learned counsel for the petitioners Sri K.

Chidambaram argues that the 3rd respondent has already

certified that the land occupied is municipal land earmarked

for latrines. He also highlights the fact that the Revenue

Divisional Officer directed the Commissioner to consider the

application and take appropriate action. Further

endorsement, dated 08.08.2019, issued by the 3rd respondent

is highlighted. In this endorsement the 3rd respondent has

clearly informed the petitioners that they would be taking

steps to remove the illegal encroachments in R.S.No.20/4 by

the unofficial respondents. Learned counsel Sri K.

Chidambaram stressed the fact that despite clear and

categorical stand taken by the 3rd respondent they have not

done anything further in the matter. It is his contention that

the 3rdrespondent-Municipal Corporation has a duty cast

upon it to remove the encroachments and unauthorized

constructions. Learned counsel also highlights the fact that

the unofficial respondents have wrongly included the

Sy.No.17/9A in their document in order to get over the bar of

registration under Section 22-A of the Registration Act.

Learned standing counsel for the Municipality Sri M.

Manohar Reddy appears for the 3rd respondent. He argues

that the petitioners have occupied a municipal site; hat they

created a document with a wrong survey number; that fraud

is played and that notices were issued to them to remove the

encroachment.

Sri J. Dileep Kumar, learned counsel for the 4th and

5th respondents argued that the land occupied by the

respondents is not an occupied land but it is a land which

has been in possession and enjoyment of the respondents'

grandfather since long. As per him since 1968 onwards the

respondents' grandfather was in clear enjoyment of the

property by paying taxes etc. After the demise of their

grandfather, the respondents' father enjoyed the property. In

the year 2005 the respondents' father executed deeds of Gift

bearing document Nos.5790 of 2005 and 5791 of 2005. With

the aid of these documents the respondents have also secured

loan for construction of the house. It is clearly submitted

that the land in Sy.No.20/4 is classified as Gram Kantam, in

which several houses of the villagers are there including the

houses of the 5thand 6threspondents. As far as the Survey

Number is concernedthe learned counsel submits that by

mistake the same is mentioned as R.S.No.17/9A instead of

R.S.No.20/4. He also relies upon the large number of

documents filed by him showing that the taxes have been

paid since long for the property and that the electricity bills,

water charge receipts, possession certificate etc., were also

issued to the respondents and their predecessors in title.

Learned counsel therefore submits that in view of the settled

possession of the 4th and 5th respondents over the Gram

Kantam land and the construction of houses it cannot be said

that they are in "illegal occupation" of the land. Learned

counsel also points out that the endorsement issued by the

3rd respondent is not correct and that the proper survey was

not conducted. He alleges that the petitionershave started a

venture near this property and therefore in order to acquire

the property of the 4th and 5th respondents they have started

this malafide litigation. He relies upon the case law, which is

filed along with a memo to argue that a person in settled

possession of Gram Kantamland cannot be said to be an

encroacher. Learned counsel argues on the basis of the case

law that Gram Kantam land on which houses are constructed

does not vest either with the State or with the Gram

Panchayat. Relying upon the judgments of the learned single

Judge in W.P.No.1517 of 2020 and the decision reported in

SigadapuVijaya v State of Andhra Pradesh and Others1

and other judgments the learned counsel argues that a

person in settled possession of Gram Kantam land cannot be

termed as an encroacher. He therefore, prays that a

Mandamus cannot be issued, more particularly as there are

seriously disputed questions on fact and law.

After considering the submissions made and the

documents filed, it is seen as a fact that the land in

Sy.No.20/4 of this Nagar Panchayat is classified as

GramaKantam. The 4th and 5threspondents have also filed

documents to show thatthey are in possession and

occupation of the land in Sy.No.20/4. The documents of title

on which they rely upon is the sale deed of 2005. In this sale

deed the survey number is mentioned as Sy.No.17/9A instead

of the correct survey number, which is Sy.No.20/4 as per

them. This is stated in the counter affidavit itself. However,

the assertion of the counsel for the unofficial respondents is

that the boundaries are correct is noted by this Court. The

fact also remains that the number of electricity bills, property

tax receipts etc., are filed. The house was also constructed

after obtaining loan from the A.P. State Housing Corporation

Ltd.The property tax receipts are also filed along with

2015 (4) ALD 88

electricity and water tax receipts. Therefore, without going

further into thematter, this Court holds that the respondents

have proved that theyare in possession of the property by

constructing a house. In fact, the petitioners are also

questioning the inaction of the official respondents in

demolishing the so called illegal construction over a public

site.

In order to exercise jurisdiction under Article 226 of

the Constitution of India for grant of a Mandamus, the

petitioners should have a right and there should be a failure

to enforce the right on the part of the respondents. Whether

the land in Sy.No.20/4 is earmarked as municipal land for

latrines or is a Gram Kantam land that is occupied by the 4th

and 5th respondents is a matter of evidence. Similarly, the

alleged discrepancy in the survey number vis-a-vis the

boundaries mentioned in the document is also a fact which

has to be considered by pleadings and evidence. Other than

the endorsement filed with the Writ Petition and the counter

of the 3rd respondent no supporting documents are filed to

show that the classification of land in Sy.No.20/4 is

Municipal land earmarked for latrines. The 4th and 5th

respondents on the other hand have clearly come on record

and argued on the basis of the adangalthat the land in

Sy.No.20/4 is a 'Gram Kantam', and is under their

occupation. It is also asserted that their predecessors in title

were in possession and enjoyment of the property. He

classification of the land; the occupation of the same; the

error or fraud in the registered document; the issue of fraud

pleaded by the 3rd respondent are pure questions of fact.

These are all matters, which are required to be pleaded and

proved in a properly instituted civil suit. Such seriously

disputed questions of facts as mentioned above cannot be

determined in a Writ Petition. Therefore, this Court is of the

opinion that the petitionersare not entitled to any relief at this

stage from this Court.

The Writ Petition is, therefore, disposed of, leaving it

open to the authorities to take action against the 4th and

5threspondents as per law, if they are so advised that they

have a claim over the property. There shall be no order as to

costs. The findings of this Court in this Writ Petition will not

come in the way of the Court in deciding the issues in the

case, if any, filed.

Consequently, the Miscellaneous Applications

pending, if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:30.03.2021.

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