K Edukondalu vs The State Of Andhra Pradesh,
2021 Latest Caselaw 4005 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

               WRIT PETITION NO.14204 OF 2021,
            WRIT PETITION Nos.23758 & 9768 OF 2020

COMMON ORDER:


      All these three writ petitions are filed under Article 226 of the

Constitution of India by different petitioners, claiming identical relief,

which reads as follows:

      W.P.No.14204 of 2021

      "To issue writ of Mandamus the highhanded action things deeds of
      respondents in trying to interfere and dispossess the petitioners

from the premises D.No.1-30 to an extent of Ac.0-03 Cents belonging to 1st and 2nd petitioners and D.No.1-10 to an extent of Ac.0-03 Cents belonging to 3rd and 4th petitioners in RS No.74/3 of Mutyalapalli Villagem, Mogaltur Mandal, West Godavari District which was granted by way of house site pattas by the 4 th respondent dated 27.03.1999 is illegal irregular arbitrary against the provisions of The Andhra Pradesh Assigned Lands Prohibition of Transfers Act, 1977 violation of Principles of Natural Justice and violation of Articles 14, 19, 21 and 300A of the Constitution of India."

W.P.No.23758 of 2020

"To issue writ of Mandamus declaring the high handed action of the Respondents and their subordinate in constructing Village Secretariat Building and Rythu Barosa Kendram in the property exclusively belongs to petitioners situated in R.S.No.74/3 an extent of Ac.0-24 cents of Mutyalapalli Village, Mogaltur Mandal West Godavari District without following due process of law as already assigned to the Petitioners and their father and also issued pattadhar passbook and Revenue Title Deed which is illegal irregular arbitrary against to the Principles of Natural Justice and violation of the provisions of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 apart from The Andhra Pradesh Assigned Lands Prohibition of Transfers Act 1977 and violation of Articles 14, 19, 21 and 300A of the Constitution of India and consequently direct the Respondents not to construct Village Secretariat Building and Rythu Barosa Kendram in the property exclusively belongs to petitioners situated in R.S.No.74/3 an extent of Ac.0-24 cents of Mutyalapalli Village, Mogaltur Mandal, West Godavari District."

W.P.No.9768 of 2020

"To issue writ of Mandamus declaring the action of the Respondents and their subordinates in trying to assign the house site Pattas of the property of respective Petitioners situated in an extent of Ac.0- 24 and Ac.0-04 cents in R.S.No.74-3 in an extent of Ac.0-02 cents in R.S.No.74/1A in an extent of and Ac.0-03 cents in R.S.No.80/1 in an extent of and Ac.0-03 cents in R.S.No.80/1, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.80/1 and Ac.0-03 cents in R.S.No.80/1 of Mutyalapalli Village Mogultur Mandal of West Godavari District as already assigned to the Petitioners which is illegal irregular arbitrary against to the Principles of Natural Justice and violation of the provisions of The Andhra Pradesh Assigned Lands Prohibition of Transfers Act MSM,J WP_14204_2021 & batch

1977 and violation of Articles 14 19 21 and 300-A of the Constitution of India consequently direct the Respondents not to assign house site Pattas of the property of respective Petitioners situated in an extent of Ac.0-24 and Ac.0-04 cents in R.S.No.74-3 in an extent of Ac.0-02 cents in R.S.No.74/1A in an extent of and Ac.0-03 cents in R.S.No.80/1 in an extent of and Ac.0-03 cents in R.S.No.80/1, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.80/1 and Ac.0-03 cents in R.S.No.80/1 of Mutyalapalli Village Mogultur Mandal of West Godavari District."

As the facts in all the three writ petitions and contentions of

the respondents are one and the same, I find that it is appropriate to

decide all the three writ petitions by common order.

W.P.No.23758 of 2020 is taken as leading case to decide the

real controversy between the parties, since Respondent Nos. 4 & 6

filed their counter affidavit in W.P.No.23758 of 2020 and no counter

affidavit is filed in other two writ petitions.

The case of the petitioners in brief is that, the petitioners are

agriculturalists living below poverty line, totally depending on the

agriculture income and fishing in the creeks and drains (upputeru).

Father of the petitioners - Kollati Suryanarayana occupied land to an

extent of Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village,

Mogaltur Mandal. The then Tahsildar issued pattadar passbook vide

Patta No.1545 in the name of petitioners father on 27.03.1999.

Since, then he was in possession and enjoyment of the said land

during his lifetime. The petitioners‟ father died on 22.11.2003.

Thereafter, the petitioners have been enjoying the same as legal

representatives of their father Kollati Suryanarayana. It is contended

that, as the petitioners are not having any house or house sites, they

made representation to the Government. The same was accepted and

also assigned Ac.0-04 cents each as house site by granting DKT

pattas in the same property i.e. property occupied by the petitioners‟ MSM,J WP_14204_2021 & batch

father. The petitioners constructed RCC building in their respective

house sites and houses were assessed to property tax by assigning

door number and the petitioners are paying property tax to the gram

panchayat. The petitioners inherited the property of their father and

the Government having recognized their financial, economic and

social condition, issued pattas, dividing the above land into six plots

and allotted to six members @ Ac.0-4 cents of land to each person.

The petitioners further contended that, the State Government

introduced the policy of „Navaratnalu Pedalandariki Illu‟ and to

implement the said scheme, the first respondent issued various

government orders and memos instructing the subordinate

authorities to identify the land and also to identify the beneficiaries.

But, the employees at the grass root level by over enthusiasm and

without following letter and spirit of intention of the government,

visited the petitioners residential area and started markings on the

existing residential houses as if they intend to assign the same to the

third parties. The action of the subordinates of the respondents is

nothing but abuse of process of law and violation of the instructions

issued by the Government. As the petitioners constructed their

houses in the land assigned to them by following assignment

conditions and without violation of any conditions of assignment,

they are continuing in possession and enjoyment of the property and

their proposed dispossession without following due process of law is

illegal and arbitrary.

When the respondents made an attempt to interfere with the

possession and enjoyment of the petitioners, they were constrained

to file W.P.No.9768 of 2020 and the same was registered on MSM,J WP_14204_2021 & batch

09.06.2020. This Court by considering the facts and circumstances

of the case, granted interim order to maintain status quo with regard

to subject property in W.P.No.9768 of 2020 and the interim order is

being extended from time to time and it is in force.

While the matter stood thus, the State Government initiated a

scheme for constructing Village Secretariat Buildings and Rythu

Bharosa Centers to provide amenities and facilities to the villagers

for distributing various schemes to the needy public with the letter

and spirit of the Andhra Pradesh Panchayat Raj Act, 1994. The

State Government issued various circulars and government orders to

the subordinates to identify suitable Government land for

construction of Village Secretariat Buildings/Rythu Bharosa

Kendram to verify and locate the ideal place and access to the

general public residing in the village.

It is contended that the first respondent directed all the

District Collectors in the State to identify the government land in the

village and also directed to prepare village wise list of the government

land such as poramboke and other government land to construct

Village Secretariat Building/Rythu Bharosa Kendram free from all

litigations.

While the matter stood thus, the respondents with the active

support of local ruling party leaders without following procedure

established under law, are trying to acquire the petitioners land for

construction of Village Secretariat Building and Rythu Bharosa

Kendram by trespassing into Ac.0-10 cents out of Ac.0-24 cents

situated in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal.

Surprisingly, the revenue authorities changed the classification of MSM,J WP_14204_2021 & batch

the land in the revenue records i.e. adangal by deleting the

petitioners father name - Kollati Suryanarayana and introduced the

classification i.e. nature of land as „Zeroythi‟ in Column No.6 and

Column No.12, noted in pattadar column as Mandabayalu and

column No.13 possessor name as „Mandabayalu‟ and in column

no.15 as government poramboke. Thus, the respondents are trying

to dispossess these petitioners from the land in their occupation

without following due process of law and in contravention of the

grant made in their favour, such illegal interference and construction

of Village Secretariat Building and Rythu Bharosa Kendram is illegal

and violative of right to property guaranteed under Article 300-A of

the Constitution of India.

It is also brought to the notice of this Court, that criminal

litigation was also disposed of by the Courts with regard to the

petitions filed by the petitioners against the respondents/officials for

the offences punishable under Section 353 of Indian Penal Code and

though evidence recorded is clear that the petitioners are in

possession and enjoyment of the property, but still, they are

repeating their attempt to dispossess these petitioners. Hence, the

petitioners filed the present writ petition for the relief stated above.

Respondent No.4 - Tahsildar, Mogaltur Mandal, West Godavari

filed counter affidavit denying material allegations, inter alia,

contending that the land of an extent of Ac.1-21 cents in

R.S.No.74/3 in Mutyalapali village is Government poramboke land

which is classified as mandabayalu and it is not fit for agricultural.

Out of the said Ac.1-21 cents, the Government constructed one

cyclone shelter on 13.07.1999, MPP School in the year 2003 in an MSM,J WP_14204_2021 & batch

extent of Ac.0-20 cents. Later, in the year 2008, the MPP School was

demolished as the same was in dilapidated condition, in the same

place a new school building was constructed. Out of the remaining

land nearly 30 persons including the petitioner's mother illegally and

highhandedly without any permission from the Government,

occupied an extent of an Ac 0.60 cents and raised houses including

the petitioners‟ mother. None of the petitioners are in possession and

enjoyment of any extent of land in R.S.No 74/3. The mother of the

petitioner's has been residing in the shed situated in R.S.No 74/3.

The petitioners constructed their houses only in zeroyati land and

the houses of the petitioners are no way connected to the land in

R.S.No 74/3. As the houses of the petitioners were in Zeroyati land

the Panchayat has been collecting house taxes from the petitioners.

The petitioners suppressed the real fact and falsely contending that

their houses are situated in Government land in R.S.No.74/3 only

for the purpose of the present writ petition. It is submitted that the

petitioner's father never occupied any extent of land in R.S.No.74/3

as already stated the petitioners mother Satyavathi has been residing

in a shed situated in an extent of Ac.0.01 ½ cents. As per the

revenue records, the Government never issued any pattadar pass

book or title deed in favor of the petitioner's father in respect of the

land in R.S.No.74/3. In fact the Government will issue pattadar

passbook in respect of agricultural land only as already stated the

land of an extent of Ac.1-21 cents which is classified as

mandabayalu, not agricultural land.

It is further contended that, the Government issued pattas to

the petitioners and two others in respect of land of an extent Ac.0-04

cents each in R.S.No.74/3 is absolutely false. The Government never MSM,J WP_14204_2021 & batch

issued any house site patta in favor of the petitioner in respect of

land of an extent Ac.0-04 cents each in R.S.No.74/3. The alleged

pattas filed by the petitioners are fake documents brought into

existence by the petitioners by forgery only for the purpose of the

writ petition. The alleged pattas issued in favor of the petitioners

contained the name of V. Bullebbai, M.R.O Mogaltur and the date

mentioned on the back side of the patta below the signature was

dated 28-6-2012, in fact, V.Bullebbai worked as M.R.O in Mogaltur

M.R.O office from 29-2-1996 to 22-3-1999 and later on 3-3-2009

V.Bullebbai died. Hence, there is no scope for issuing pattas to the

petitioners in the year 2012 by the deceased M.R.O. The alleged

signatures of V. Bullebbai on the alleged pattas on 28-6-2012 are

forged signatures. It clearly shows that the petitioners by forging the

signatures of the deceased Tahasildar V.Bullebbai brought into

existence the alleged house site pattas and obtained Status quo

orders by misleading the court. The alleged pattas are not valid

under law. It is also significant that in paragraph 3 of the affidavit

the petitioners pleaded that as per the gram panchayat resolution

dated 6-2-1988 the Government issued house site pattas to the

petitioners. The Pattas bears the date as 28-6-2012. It shows that

the alleged house site pattas are fake documents. Moreover the

Government will not issue any patta basing on a resolution passed

about 30 years back.

It is further contended that, out of the Government land of an

extent of Ac.1-21 cents in R.S.No.74/3 an extent of Ac.0-41 cents is

lying vacant. So the Panchayat in order to construct Grama

Sachivalayam, Rythu Barosa Kendram and wellness center in the MSM,J WP_14204_2021 & batch

said extent of Ac.0-41 cents submitted letter to the higher authorities

and accordingly the Government issued administrative sanction for

construction of Grama Sachivalaym on 13-1-2020, Rythu Barosa

Kendram on 9-5-2020 and Wellness center on 9-5-2020 under

MGNREGS - DWMA Scheme. The Total cost of the 3 buildings is

Rs.76.74/- lakhs. The panchayat also passed resolution dated

18-7-2020 for construction of the above said three buildings. The

construction work was already started and the work is in progress.

All the three new buildings are being constructed in the vacant site

situated in an extent of Ac.0-41 cents in R.S.No.74/3 and no houses

including the houses of the petitioners are situated in the said site.

The petitioners building sare situated on west of the Government

land in R.S.No.74/3. The shed of the petitioners‟ mother is situated

in an extent of Ac.0.01 ½ cents and the proposed new constructions

are far away from the said shed. The land of an extent of Ac.0-41

cents in R.S.No.74/3 is vacant land covered with bushes and free

from encroachments. In order to construct the proposed buildings

the mandal surveyor surveyed the land after clearing the bushes. At

the time of clearing the bushes in the Ac.0-41 cents of land or at the

time of conducting the survey neither the petitioner nor their mother

raised any objection nor they filed any petition before the

Government. Hence, it is clear that the proposed constructions are

not raising any objection to the mother of the petitioners and they

are being constructed in vacant land only.

It is also contended that, previously the 1st petitioner along

with seven other petitioners filed W.P No.9768 of 2020 claimign right

in land of an extent of Ac.0-28 cents in R.S.No 74/3, Ac.0-02 cents

in R.S.No.74/1A, Ac.0-09 cents in R.S.No 80/1 and Ac.0-06 cents in MSM,J WP_14204_2021 & batch

R.S.No 77/9 and obtained status quo orders on 27-11-2020. The

land in R.S.Nos.74/1A, 80/1 and 77/9 is no way connected with the

proposed construction of new buildings. The first petitioner also got

filed W.P.No.10209 of 2020 through his relatives Mutyalapalli

Peddiraju and three others in respect of land of an extent of Ac.0-15

cents in R.S.No 80/1, Ac.0-03 cents in R.S.No 73/3 and Ac.0-03

cents in R.S.No 74/3. The land in R.S.No 80/1 and 73/3 is no way

connected to the proposed construction of new buildings. Now the 1st

petitioner and his brother filed the present writ petition in respect of

land of an extent of Ac.0-24 cents in R.S.No.74/3 and obtained

status quo order. The land covered by the three writ petitions is a

total extent of Ac.0-55 cents in R.S.No.74/3 and therefore, there is

no connection between the present writ petition and other two writ

petitions and requested to dismiss the writ petition.

Respondent No.6 - Panchayat Secretary, Mutyalapalli Gram

Panchayat, Mogalthur Mandal, West Godavari District, filed counter

and additional counter affidavit, denying material allegations, inter

alia contending that, the government sanctioned the buildings for

Village Secretariat, Rythu Barosa Kendram and wellness center to

the gram panchayat. Respondent No.6 has identified the panchayat

site to an extent of Ac.0-41 cents in Sy.No.74/3 which is vacant and

is in possession of the gram panchayat. The work is in progress in

the site identified by the panchayat. But, these petitioners filed writ

petition with false allegations.

Respondent No.6 also filed additional counter affidavit alleging

that, at request of Respondent No.6, the Tahsildar enquired into the

genuineness of the patta which alleged to have been issued by the MSM,J WP_14204_2021 & batch

then M.R.O. late Sri V.Bullabai in favor of the petitioners. The

Tahsildar after verification of the records categorically reported that

the said V. Bullabai worked as a M.R.O. during the period of

29.02.1996 to 22.03.1999. Whereas, the alleged pattas have been

issued on 27.03.2009, 28.03.2009 and 28.03.2012. Hence, as on the

date of issuing the pattas, alleged to have been issued in favor of the

petitioners the signatory i.e. M.R.O - V. Bullabai is no more as he

died on 03.03.2009. The petitioners have forged the signature of the

dead person on the patta forms and claiming the panchayat site.

Hence, the Tahsildar reported that the petitioners fabricated the

pattas by forging the signature of the dead person. For fabrication of

the pattas the Tahsildar already made a criminal complaint to the

Police.

It is further contended that, at request of Respondent No.6, the

Village Revenue Officer and the Village Surveyor conducted survey of

the houses of the petitioners. In their survey they found that the

petitioners 2 to 4 have their respective houses situated in Survey No.

74/2. So far as the 1st petitioner is concerned, he encroached the

small extents about Ac.0-02 cents in Survey No.74/3 and

constructed small shed with asbestos sheets roof and the

respondents are not touching their respective houses including the

1st petitioner till date. Thus, the alleged interference of the

respondents with the possession and enjoyment of the property of

these petitioners in Sy.No.74/3 is baseless and requested to dismiss

the writ petition.

During hearing, Sri Dasari S.V.VS.V. Prasad, learned counsel

for the petitioners vehemently contended that, the fourth respondent MSM,J WP_14204_2021 & batch

raised most inconsistent pleas about possession and enjoyment of

the petitioners, while denying issue of D-Form Pattas in favour of

these petitioners, so also issue of pattadar passbooks and title deeds

in favour of the petitioners‟ father. But, the documentary evidence

produced before this Court would clinchingly establish that pattas

were granted in favour of the petitioners in Sy.No.74/3. The alleged

forgery of pattas is not substantiated by the Government and no

proof is produced by the respondents to substantiate the opinion of

Respondent Nos. 4 & 6 about death of the then Tahsildar Sri V.

Bullabai, thereby, the petitioners are approached this Court claiming

discretionary relief of writ of mandamus, since the petitioners

possession is admitted by Respondent No.4 in his counter affidavit

specifically and they cannot be dispossessed even if their possession

is illegal or unauthorized, except by due process of law. When the

fourth respondent admitted that the petitioners are in possession

and enjoyment of the land in Sy.No.74/3, in the absence of proof

that they were dispossessed by due process of law, they are deemed

to be in possession of the same. Hence, the petitioners are able to

substantiate their contention that they are in possession and

enjoyment of the property in Sy.No.74/3 of Mutyalapalli Gram

Panchayat, Mogalthur Mandal, West Godavari district. In addition to

the above contention, the petitioners specifically pointed out that,

when the land is allegedly classified as „mandabayalu‟, it is a land for

the benefit of the villagers to graze the cattle in the land and unless

the same is converted into Assessed Waste Dry by following

necessary procedure prescribed under Board of Revenue Standing

Orders, the same cannot be utilized for the purpose of construction

of Rytu Barosa Kendram, Wellness Centre and Village Secretariat.

MSM,J WP_14204_2021 & batch

Consequently, the very construction of these three buildings is

contrary to Board of Revenue Standing Orders. On this ground also,

constructions cannot be allowed to be proceeded and requested to

allow the writ petition by granting writ of mandamus, as claimed by

these petitioners.

Learned Assistant Government Pleader for Revenue would

contend that, the pattas filed along with the writ petition are fake,

since M.R.O. - V. Bullabai died on 03.03.2009, but pattas were

allegedly issued on 27.03.2009, 28.03.2009 and 28.03.2012. To

substantiate the contention, he relied on the death certificate

produced by Respondent No.6 issued on 18.01.2021. On the

strength of the death certificate of Vardhanapu Bullabbai, learned

Assistant Government Pleader for Revenue contended that, by the

date of alleged issue of pattas, the then M.R.O.- V. Bullabbai is no

more. Hence, it is clear that the signatures of V. Bullabbai on the

pattas were forged and brought into existence. On this ground alone,

the petitioners‟ case has to be thrown out as the relief of writ of

mandamus is discretionary in nature.

It is further contended that, the petitioners were never in

possession and enjoyment of the property in Sy.No.74/3 and

thereby, the petitioners are not entitled to claim any relief in the writ

petition and prayed for dismissal of the same.

Whereas, Sri Kotireddy Idamakanti, learned Standing Counsel

for Respondent No.6 supported the contentions of Respondent No.4

in toto, while drawing attention of this Court to death certificate of V.

Bullabbai, the then Tahsildar to dismiss the writ petition on the MSM,J WP_14204_2021 & batch

ground that the petitioners approached the Court by producing

forged D-Form Pattas.

It is further contended that the construction is going on in an

extent of Ac.0-41 cents in Sy.No.74/3 of Mutyalapalli Gram

Panchayat, Mogaltur Mandal and thereby, the petitioners are not

entitled to claim any relief in the writ petition, as they are out of

possession and the construction is in progress. To support the same,

they placed on record the photographs of the construction in

progress and also existing house of the petitioners. On the strength

of the material, the respondents sought to dismiss the writ petition

filed by these petitioners.

Considering rival contentions, perusing the material available

on record, the points that arose for consideration are as follows:

1. Whether the petitioners approached this Court with unclean hands claiming discretionary relief of writ of mandamus. If so, whether the writ petition is liable to be dismissed on this sole ground.

2. Whether the petitioners are in possession and enjoyment of land in Sy.No.74/3 of Mutyalapalli Gram Panchayat, Mogaltur Mandal in their own right or otherwise. If so, whether the respondents made any attempt to dispossess them unduly without following due process of law and whether such interference can be declared as illegal, arbitrary and violative of Articles 14 & 300-A of the Constitution of India?

3. Whether 'mandabayalu' - communal land be utilized for the purpose of construction of Rytu Barosa Kendram, Wellness Center and Village Secretariat without converting the same from mandabayalu to assessed waste dry land? If not, whether Respondent Nol.6 be restrained from proceeding with the construction work of Rytu Barosa Kendram, Wellness Center and Village Secretariat?

MSM,J WP_14204_2021 & batch

P O I N T No.1

The first and foremost contention raised by the petitioners is

that, on their application and based on the resolution passed by the

panchayat on 06.02.1988, house site pattas were granted to the

petitioners assigning extent of 4 cents to each of the petitioners in

Sy.No.74/3. The consistent case of the petitioners from the

beginning is that, the father of the petitioners - Kollati

Suryanarayana was in possession and enjoyment of Ac.0-24 cents in

Sy.No.74/3 of Mutyalapalli Village, Mogaltur Mandal, West Godavari

District, during his lifetime; pattadar passbooks and title deeds were

issued in his favour and Kollati Suryanarayana died on 22.11.2003.

Whereas, Respondent Nos. 4 & 6 specifically raised a contention

that, the pattas placed on record by the petitioners were allegedly

issued on 27.03.2009, 28.03.2009 and 28.03.2012, by the then

M.R.O. - V. Bullabai who died on 03.03.2009. Respondent No.6

placed on record death certificate of V. Bullabai, obtained on

18.01.2021 to establish the date of death of V. Bullabai, the then

M.R.O.

In view of the specific contention of the petitioners, it is

necessary to advert to the material on record placed by the

respondents on record. The pattadar passbooks and title deeds were

issued in favour of Kollati Suryanarayana vide Patta No.1545 for an

extent of Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village,

Mogaltur Mandal. The adangal copies for Fasli 1426 would disclose

that Kollati Suryanarayana is the pattadar and enjoyer, as noted in

Column Nos. 12 & 13. The total extent of Ac.0-24 cents in MSM,J WP_14204_2021 & batch

Sy.No.74/3 and the nature of acquisition is mentioned as „purchase‟.

Thus, the pattadar passbooks and title deeds were issued in favour

of father of these petitioners and his name was also mutated in the

revenue records as pattadar and enjoyer.

The DKT pattas issued in favour of the petitioners are also

placed on record and they were issued on 28.06.2012 in

Roc.HSA/252/F/1406 dated 28.06.2012 to the first petitioner i.e

Kollati Yedukondalu. Similarly, patta was granted in favour of Kollati

Murali dated 28.06.2012 in Roc.HSA/252/F/1406 i.e. second

petitioner. Patta was also allegedly issued in favour of third petitioner

on 27.03.2012 and fourth petitioner was assigned an extent of 4

cents in Sy.No.74/3 on 27.03.2012. The date is appearing both on

the top of the assignment copy and also underneath the signature of

the Tahsildar. It is not known whether the signature appearing on

the patta placed on record is that of V. Bullabai. Signature is also

appearing across the passport size photographs affixed on the patta,

but it is difficult to identify the name of the person as to who signed

on the patta. Whether the signature appearing on the pattas is that

of V. Bullabai or somebody else who was working as on the date of

issue of patttas is not known. Therefore, in the absence of

production of any document containing admitted signature of the

then M.R.O on the date of issue of patttas, it is highly difficult for me

to conclude that the pattas were signed by the said V. Bullabai who

was no more as on the date of issue of those pattas. If really, the

signature of V. Bullabai is placed on record to compare the signature

on pattas with admitted signature and find out whether these pattas

were signed by V. Bullabai or somebody else, the Court can prima MSM,J WP_14204_2021 & batch

facie arrive at a conclusion that the signature is prima facie true.

But, such finding cannot be recorded by this Court while exercising

power under Article 226 of the Constitution of India, since

comparison of disputed signatures with admitted signatures is

permitted under Section 73 of the Indian Evidence Act, but this

Court can exercise such power while deciding the writ petition under

Article 226 of the Constitution of India.

When the respondents are contending that the signatures of

V. Bullabai are forged and that these petitioners approached the

Court with unclean hands, it is for them to establish the same, but

here, the respondents failed to establish that the signature appearing

on the pattas is that of V. Bullabai, the then M.R.O and that he died

on 03.03.2009. Therefore, it is difficult to conclude that these

petitioners approached this Court with unclean hands by producing

forged pattas, at this stage. Hence, on the same ground, the

petitioners cannot be non suited. Accordingly, the point is answered

in favour of the petitioners and against the respondents.

P O I N T No.2:

The claim of the petitioners before this Court is that, land to

an extent of Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village,

Mogaltur Mandal, but, whereas, the respondents raised inconsistent

pleas in their counter affidavits. The specific contention of

Respondent No.4 - Tahsildar in the counter affidavit is, at one stage,

Respondent No.4 admitted that 30 persons including the petitioners‟

mother occupied land of the Government of an extent of Ac.0-60

cents in Sy.No.74/3 (vide Paragraph No.2(i) of Respondent No.4 MSM,J WP_14204_2021 & batch

counter affidavit). At the same time, in the same paragraph, it is

contended that, none of the petitioners are in possession and

enjoyment of any extent of land in R.S.No.74/3. But, again it is

contended that, mother of these petitioners was residing in the shed

in R.S.No.74/3 and that the petitioners constructed their houses

only in zeroyati land and the petitioners are no way connected to the

land in R.S.No.74/3. Thus, there is any amount of inconsistency in

the plea raised by Respondent No.4 regarding possession and

enjoyment of the property. Even if the allegations made by

Respondent No.4 in Paragraph No.2(i) of the counter affidavit are

accepted, thirty persons have occupied the land in an extent of Ac.0-

60 cents in Sy.No.74/3 of Mutyalapalli Village without consent of the

Government. It is not the case that they were dispossessed by

following due process of law, but still, contended that they are not in

possession of the property in the latter part of the same paragraph.

Hence, in the absence of any proof that the petitioners were

dispossessed by following due process of law from Ac.0-04 cents

each in R.S.No.74/3 of Mutyalapalli Village, they are deemed to be in

possession and enjoyment of the property. Similarly, Respondent

No.6 also denied possession of the property at one stage and

admitted at another stage.

The petitioners while asserting that, they are in possession

and enjoyment of the property, the petitioners placed on record

several documents including pattadar passbook evidencing that

pattadar passbooks and title deeds were issued to these petitioners‟

father for an extent of Ac.0-24 cents in Sy.No.74-3 in Mutyalapalli

Village with Passbok No.1545. Added to that, the adangal copy

produced before this Court for Fasli 1426 obtained on 14.02.2017 MSM,J WP_14204_2021 & batch

also disclosed that an extent of Ac.0-24 cents in Sy.No.74/3 of

Mutyalapalli Village is classified as „zeroythi‟ land and name of

Kollati Suryanrayana - father of these petitioners is noted in Column

Nos.12 & 13 as pattadar and enjoyer for an extent of Ac.0-24 cents

in Column Nos. 14 & 15. Besides these two documents, D-Form

pattas in Roc.HSA/252/F/1406 dated 28.06.2012 produced before

this Court would prima facie show that an extent of Ac.0-04 cents of

house site in Sy.No.74/3 of Mutyalapalli Village was assigned to each

of these petitioners. They raised construction and assessed to tax.

These documents would clinchingly establish that these petitioners

are in possession and enjoyment of Ac.0-04 cents each in

Sy.No.74/3 of Mutyalapalli Village, allotted to them by granting

D-Form patta. The electricity bills and tax receipts would also form

additional link to establish that they are in possession and

enjoyment of the property.

Respondent Nos. 4 & 6 contended that these pattas were

issued by the then M.R.O - V. Bullabai and they are forged. But, as

per my discussion in Point No.1, Respondent Nos.4 & 6 failed to

substantiate that the signature on D-Form pattas placed on record is

that of V. Bullabai. In the present proceedings under Article 226 of

the Constitution of India, it is difficult to decide such an issue

regarding forgery based on the material. Moreover, copy of judgment

in C.C.No.1002 of 2012 would show that Kollati Srinivasa Rao and

Kollati Satyanrayana were arrayed as accused. Kollati Srinivasa Rao

is arrayed as first petitioner in W.P.No.14204 of 2021. A specific

finding was recorded by the Trial Court as to the possession and

enjoyment of the property in Sy.No.74/3 of Mutyalapalli Village. In

the judgment, the Additional Judicial Magistrate of First Class, MSM,J WP_14204_2021 & batch

Narasapuram observed about occupation of the land by the

petitioners.

Thus, the material on record including inconsistent pleas

raised by Respondent No.4 in Paragraph No.2(i) of the counter

affidavit, the revenue records produced by the petitioners could

establish that the petitioners are in possession and enjoyment of the

land in Sy.No.74/3 of Mutyalapalli Village i.e Ac.0-04 cents each by

virtue of assignment, granting D-Form patta in their favour. When

the petitioners are in settled possession and enjoyment of the

property, they cannot be dispossessed, except by due process of law,

as held by the Apex Court in "Rame Gowda (dead) by L.Rs. v.

M.Varadappa Naidu (Dead) by L.Rs.1. But, in the instant case on

record, the respondents identified only Ac.0-10 cents of land in

Sy.No.74/3 in Mutyalapalli Village for construction of Rytu Barosa

Kendram, Wellness Center and Village Secretariat and the

construction is in progress.

In any view of the matter, the persons in possession cannot be

dispossessed except by due process of law, as discussed above.

Hence, construction of Rytu Barosa Kendram, Wellness Center and

Village Secretariat without dispossessing these petitioners from their

land in their possession, can safely be held to be illegal. However,

they are directed not to dispossess these petitioners form the land in

their possession. Accordingly, the point is answered.

POINT No.3

One of the major contentions raised by the petitioners is that,

when the land is classified as „mandabayalu‟ which is a communal

2004 (1) SCC 769 MSM,J WP_14204_2021 & batch

land, that can be utilized only for the purpose of public/ community

at large and cannot be used for any other purpose i.e. for

construction of Rytu Barosa Kendram, Wellness Center and Village

Secretariat without converting the same from „mandabayalu‟ to

„assessed waste dry‟. But the respondents categorically admitted in

their counter affidavit that the land is classified as mandabayalu in

RSR i.e. grazing land meant for the purpose of grazing cattle by the

villagers. When the land is classified as „mandabayalu‟, unless the

same is converted into „assessed waste dry‟ by following procedure

under B.S.O.15(2), the same cannot be utilized for any other

purpose, except for grazing cattle, which is meant only for communal

purpose only.

Classification of land still remained as „mandabayalu‟ and no

change of classification was done by the respondents. Apart from

that, B.S.O. 15(2) is to be followed for transfer of land from one

department to other department of the State. But, no such transfer

has taken place. In addition to transfer of land, as long as the

classification is continuing to be „mandabayalu‟, unless specific

procedure is prescribed under Board Standing Order for change of

classification is complete, the land does not vest on the Revenue

Department.

A separate procedure is prescribed for conversion of land from

one category to the other category (classification) in B.S.O.15(2).

B.S.O.15 deals with disposal of land. Clause (2) of B.S.O.15 deals

with classification of land. Land is classified in different categories,

they are follows:

(i) Land prima facie available for assignment.

MSM,J WP_14204_2021 & batch

(a) Assessed land which is not reserved.

(b) Unassessed land which is not reserved.

(ii) Land prima facie not available for assignment.

(a) Poramboke.

(b) Reserved land ("assessed" and "unassessed").

Paragraph 3 deals with transfer of land from one head to

another, which authorises the Collector to transfer of poramboke

from one head to another or to assessed waste. But a procedure is

prescribed under the Board Standing Order how to transfer such

land.

However clause (4) of B.S.O.15 deals with "lands that may be

assigned and that may not be assigned." B.S.O. 15 (4) (ii) (a)

prohibits assignment of Poramboke tank-beds, fore-shore of tank-

beds cattlestands, grazing lands and reserved lands (reserved for

depressed class members) or for any public purpose, such as

schools, play grounds, hospitals, maternity centres, reading rooms,

extension of house sites, panchayat purposes, town sites and lands

in the proximity thereof.

Section 58 of the Panchayat Raj Act is a special provision to

divest the tanks, roads, etc, specified in Sections 53, 54, 55 & 57,

including the porambokes namely, grazing grounds, thrashing floors,

burning and burial grounds, cattle stands, cart tracks and topes,

which are at the disposal of the Government and are not required by

them for any specific purpose shall vest in the Gram Panchayat

subject to such restrictions and control as may be prescribed.

Sub-section (2) of Section 58 says that, the Government may, at any

time by notification in the Andhra Pradesh Gazette, direct that any

porambokes referred to in sub-section (1) shall cease to vest in the MSM,J WP_14204_2021 & batch

Gram Panchayat if it is required by them for any specific purpose

and thereupon such porambokes shall vest in the Government.

Therefore, a gazette notification is necessary to divest the property on

the government that vested on the gram panchayat. In the absence

of any notification issued by the Government divesting Gram

Panchayats of any poramboke lands, there cannot be any use of

panchayat land by following B.S.O 15(2), the same cannot be used

for any other purpose. Thus, unless there is a notification by the

Government divesting gram panchayat and vesting on Government

any property referred above, there cannot be any use of panchayat

land for any other purpose. (vide Rythu Seva Sangam,

Yenamadurru v. Bhimavaram Municipality2 and Banne Gandhi

and others v. District Collector3).

A similar issue like distribution of gramakantam land which is

community land to the landless poor came up for consideration in

Sarpanch Palakda Gram Panchayat v. District Collector4, where

the High Court of Andhra Pradesh held that distribution or

assignment of gramakantham which is community land to anyone by

Government without issuing any notification, divesting such land

from Panchayat is illegal.

When the land is communal land, it cannot be converted by

following procedure under B.S.O 15(2). Unless, such conversion is

made and allotted to panchayat - Respondent No.6 for construction,

the work in progress is without any authority. Moreover, when land

is grazing land meant for communal purpose, it is the duty of the

State to protect such communal land.

2012 (5) ALT 631

2007 (2) ALT 550

1997 (2) ALT 486 MSM,J WP_14204_2021 & batch

In Jagpal Singh & Others v. State of Punjab & Others5, at

paragraph No.4, the Apex Court held as follows:

"The protection of common rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya v. Paladuge Anjayya6, this Court observed :

"It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the landholder. Hence those rights cannot be said to have been abrogated by Section 3) of the Estates Abolition Act."

In view of the principle laid down by the Supreme Court in the

judgment referred above, particular piece of land is earmarked for

public or communal purpose, it shall not be alienated even after

change of classification of the land.

In view of the law declared by the Apex Court, the land cannot

be utilized for any other purpose, except for grazing cattle as

„mandabayalu‟ and no change of classification of the land in

Sy.No.74/3 is for „mandabayalu‟ into „assessed waste dry‟ by

following procedure under B.S.O 15(2).

When the land is classified as „mandabayalu‟ and it is

government land, the panchayat cannot take a decision to construct

Rytu Barosa Kendram, Wellness Center and Village Secretariat and

unless it is allotted by the Government by the panchayat for such

construction.

AIR 2011 SC 1123

1972(1) SCC 521 (529) MSM,J WP_14204_2021 & batch

In view of the law declared by the Apex Court and High Court,

when the land is classified as „mandabayalu‟ (grazing land), it is for

the benefit of the community at large i.e. villagers of Mutyalapalli

Village to graze their cattle. The same is not converted into „assessed

waste dry‟ by following procedure under B.S.O 15(2) and still, it is

deemed to be the land belonging to the Government. In such case,

the sixth respondent raises any construction like Rytu Barosa

Kendram, Wellness Center and Village Secretariat without allotment

of land to the panchayat, since vesting of porambokes on the

panchayat is only for limited purpose of custody of those lands and

thereby, the panchayat - Sixth respondent cannot exercise right and

title over the property to raise any construction, defeating the rights

of community/villagers of Mutyalapalli Village at large i.e. for grazing

cattle. Hence, construction of Rytu Barosa Kendram, Wellness

Center and Village Secretariat in the land which is classified as

„mandabayalu‟ without conversion from communal land to „assessed

waste dry‟ and without allotment of land by the Government to

Respondent No.4 to 6 is an illegality. Hence, on this ground also, the

construction of Rytu Barosa Kendram, Wellness Center and Village

Secretariat is impermissible in the land in Sy.No.74/3. Accordingly,

the point is answered in favour of the petitioners and against the

respondents.

In view of my foregoing discussion, I find that the petitioners

are in possession and enjoyment of the property of an extent of

Ac.0-04 cents in Sy.No.74/3 in Mutyalapalli Village, and that, the

land is classified as „mandabayalu‟ - grazing land and no conversion

proceedings were issued following the proceedings under MSM,J WP_14204_2021 & batch

B.S.O.15(2). On Such conversion, no allotment was made to the

panchayat for construction, since the land belongs to revenue

department. Hence, I find that it is a fit case to allow W.P.No.23758

of 2020, declaring the action of the respondents in constructing Rytu

Barosa Kendram, Wellness Center and Village Secretariat in land in

R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal, as illegal,

arbitrary and violative of principles of natural justice.

In the result, W.P.No.23758 of 2020 is allowed, declaring

action of the respondents in constructing Rytu Barosa Kendram,

Wellness Center and Village Secretariat in land of an extent of

Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village, Mogaltur

Mandal, as illegal, arbitrary and violative of principles of natural

justice; while, directing the respondents not to construct Rytu

Barosa Kendram, Wellness Center and Village Secretariat in land

which is classified as „mandabayalu‟ in R.S.No.74/3 of Mutyalapalli

Village, Mogaltur Mandal.

W.P.No.9768 of 2020

In view of my detailed discussion in W.P.No.23758 of 2020,

W.P.No.9768 of 2020 is allowed, declaring the action of the

respondents in trying to assign the house site pattas of the property

of respective petitioners situated in an extent of Ac.0-24 and Ac.0-04

cents in R.S.No.74-3 in an extent of Ac.0-02 cents in R.S.No.74/1A

in an extent of and Ac.0-03 cents in R.S.No.80/1 in an extent of and

Ac.0-03 cents in R.S.No.80/1, Ac.0-03 cents in R.S.No.77/9, Ac.0-03

cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.80/1 and Ac.0-03

cents in R.S.No.80/1 of Mutyalapalli Village Mogultur Mandal of

West Godavari District, while directing the respondents not to MSM,J WP_14204_2021 & batch

interfere and dispossess the petitioners from the property except by

due process of law.

W.P.No.14204 of 2021

In view of my detailed discussion in W.P.No.23758 of 2020,

W.P.No.14204 of 2021 is allowed, declaring the action of the

respondents in trying to interfere and dispossess the petitioners from

the premises D.No.1-30 to an extent of Ac.0-03 Cents belonging to

1st and 2nd petitioners and D.No.1-10 to an extent of Ac.0-03 Cents

belonging to 3rd and 4th petitioners in R.S.No.74/3 of Mutyalapalli

Villagem, Mogaltur Mandal, West Godavari District; while directing

the respondents not to interfere and dispossess the petitioners from

the property, except by due process of law.

However, this order will not preclude the Tahsildar to take

appropriate action to evict the encroachers, if any, in the event

D-Form pattas issued in their favour are not genuine, by following

appropriate procedure. No costs.

Consequently, miscellaneous applications, pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:08.10.2021

SP