S.K.Fathima 9 Others vs The State Of Ap., Revenue Dept., 4 ...
2022 Latest Caselaw 1602 AP

         THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

                      WRIT PETITION NO.6787 OF 2015

     ORDER:

1) This writ petition is filed under Article 226 of the Constitution

of India for issue of writ of mandamus declaring the action of

Respondent Nos. 2 to 5 in attempting to dispossess the petitioners

from their respective houses situated in Plot Nos.43,36,42,26,68,

53,109,62,28,122 in Sy.No.292/15, 392/16 and 392/17, 392/18,

Ambedkar Colony, Kurnool Road, Near Sri Haritha Cold Storage,

Pernamitta Village, Santhanuthalapadu Mandal, Prakasam District,

without any authority of law and without any enquiry as illegal,

arbitrary and consequently direct Respondent Nos. 2 to 5 not to

dispossess the petitioners from various plots stated above.

2) The brief facts of the case are that, the petitioners are houseless

poor persons, belonging to different castes, eking out their livelihood

by doing coolie works. The land in Sy.No.392/15,16,17,18 in

Pernamitta Village is „Assessed Waste Dry‟ Land. The petitioners

being houseless poor made applications to Respondent No.5 for grant

of house site and after verification of the petitioners eligibility, the

respondents have got approved layout in an extent of Ac.6-00 cents.

There are about 158 plots, each of an extent of 2 ½ cents in the said

layout. After following the procedure, Respondent No.5 issued house

site pattas to the petitioners along with others on 12.08.2005. Since

the date of allotment of hosue sites to the petitioners, the petitioners

are in possession and enjoyment of the plots, raised huts and

constructed rooms with asbestos sheets sheds and residing there. The

petitioners also obtained electricity service connection and paying MSM,J WP_6787_2015

electricity consumption charges to the concerned. Thus, the

petitioners are in possession and enjoyment of the land for the last

eight years without any interruption from anybody.

3) While the matter stood thus, surprisingly, Respondent No.5

along with his staff came to the petitioners colony and directed them

to vacate the houses. When questioned about the illegal action of

Respondent No.5, he informed that there were orders from

Respondent No.3 that the land measuring an extent of Ac.2-00 cents

was declared as private land which belongs to Pabbisetty Mohan Rao

and others, wherein 64 house site pattas were given vide proceedings

dated 01.03.2013. Further, they have issued another proceedings

dated 16.08.2014 where Respondent No.2 categorically directed

Respondent No.5 to provide house site pattas to the petitioners and

63 others at any different place. On receipt of the proceedings, the

petitioners were surprised that the orders dated 01.03.2013 were

without issuing notice, while declaring the land of an extent of

Ac.2-00 cents in Sy.No.392/17 in favour of Pabbisetty Mohan Rao

and others persons. Thus, the action of Respondent No.3 declaring

that Pabbisetty Mohan Rao and others persons are the owners of land

of an extent of Ac.2-00 cents in Sy.No.392/17 is illegal and arbitrary

and without following due process of law.

4) Even assuming that the above land is a private patta land,

Respondent No.2 in his proceedings dated 16.08.2014 specifically

directed the authorities to grant house site pattas alternatively in the

land in Sy.No.394/2 which is a Government Land identified by

Respondent No.5. But, without taking any action on the orders

passed by Respondent No.2, Respondent No.5 for extraneous

considerations insisted these petitioners to vacate the houses high-

handedly.

MSM,J WP_6787_2015

5) Respondent No.2 may take appropriate decision to allot the

land to the individual in whose favour Respondent No.3 passed the

order in Sy.No.394 instead of disturbing the petitioners colony. At any

rate, Respondent No.3 for his extraneous consideration and without

conducting enquiry, issued proceedings dated 01.03.2013,

whereunder the classification mentioned as Government Land to an

extent of Ac.2-00 cents was cancelled and declared the title in favour

of Pabbisetty Mohan Rao and others. Thus, the action of Respondent

Nos. 2 to 5 is arbitrary and requested to issue direction as stated

above.

6) Further, Pabbisetty Mohan Rao and seven others filed implead

petition and the same was allowed vide order in I.A.No.3 of 2015

(WPMP No.23795 of 2015) dated 31.01.2022 and they were impleaded

as Respondent Nos.6 to 13 to the writ petition.

7) Respondent No.5/Tahsildar filed counter affidavit, denying

material allegations, while admitting about issue of pattas in favour of

these petitioners and orders passed by Respondent No.2 directing

Respondent Nos.3 & 5 to handed over the land to Respondent Nos. 6

to 13. As per D.K. Register available in the office of Tahsildar,

Santhanuthalapadu, 146 house site pattas were issued to

SC/ST/BC/OC beneficiaries in Sy.Nos.392 of Pernamitta Village of

Santhanuthalapadu Mandal vide D.K. No.2/1418 dated 12.08.2008.

The total land in Sy.No.392 of Pernamitta Village of

Santhanuthalapadu Manal measuring an extent of Ac.21-66 cents

has been sub-divided into three parts, as under:

                       i. 392/1        Ac.4-56         patta land
                      ii. 392/2        Ac.11-40        AW
                      iii. 392/3       Ac.5-70         patta land
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                                                                        WP_6787_2015




8)             The land in Sy.No.392/2 has been sub-divided into 16 parts

and D.K. pattas for agriculture purpose were issued to several

persons under D.K No.145/85. The land, admeasuring an extent of

Ac.2-00 cents in Sy.No.392/17 has been assigned by the Tahsildar to

one Pabbisetty Adiseshaiah, who was a Freedom Fighter vide D.K.

No.145/85 dated 17.11.1972. The then Tahsildar,

Santhanuthalapadu had issued 64 house site pattas in the name of

Pabbisetty Adiseshaiah and the then Tahsildar also issued 82 house

pattas in others sub-divided survey numbers. The names of 64

persons who were allotted house site pattas in Sy.No.392/17 to an

extent of Ac.2-00 cents were are disclosed in the counter affidavit

itself.

9) The legal heirs of late Pabbisetty Adiseshaiah represented to the

Tahsidlar, Santhanuthalapadu to cancel 64 house pattas issued in

their favour in Sy.No.392/17 in an extent of Ac.2-00 cents to mutate

their names in pattadar pass books and title deeds issued in favour of

late Pabbisetty Adiseshaiah. The then Tahsildar, Santhanuthalapadu

sent a report to Revenue Divisional Officer, Ongole stating that, it is

not possible to change pattadar pass books and title deed issued to

Pabbisetti Adiseshaiah in favour of his sons, since 64 house site

pattas were given in the said land and Tahsildar also mentioned in his

report that D.K. patta granted in the name of Pabbisetti Adiseshaiah

in respect of Sy.No.392/17 to an extent of Ac.2-00 cents has not been

cancelled. The Revenue Divisional Officer, Ongole forwarded the

report of the then Tahsildar, Santhanuthalapadu to the Joint

Collector, Prakasam. It is further contended that, the Joint Collector

issued show cause notices to the 64 house site pattadars under B.S.O

15(8) r/w 21 directing them to appear before the Joint Collector,

Prakasam and on 18.02.2012 the house site pattadars have attended MSM,J WP_6787_2015

before the Joint Collector. It is further submitted that, after

verification of the documents i.e. pattadar pass books, cooperative

society loans, pass books etc, filed by the legal heirs of late Pabbisetty

Adiseshaiah, the 64 affected persons agreed that the freedom fighters

family cannot be deprived of the assignment granted to them and they

agreed an alternative location to enable them to construct their

houses. Accordingly, the Joint Collector, Prakasam District, Ongole

passed orders on 01.03.2013 inD.Dis.E3/2773/2011 directing the

Revenue Divisional Officer, Ongole and Tahsildar, Santhanuthalapdu

to identify suitable land for grant of house site to the persons who

were already granted house site pattas in Sy.No.392/17 of

Santhanuthalapadu, if they are otherwise found eligible, as the said

land was already assigned to the freedom fighter and to take action to

cancel the house site pattas issued in Sy.No.392/17.

10) In view of the direction issued by the Joint Collector,

Prakasam District, the Tahsildar, Santhanuthalapadu sent a proposal

on 22.11.2013 in Rc.No.DT/306/2012 that Sy.No.394/2 in

Pernamitta Village, an extent of Ac.2-84 cents which was classified as

Assessed Waste Land in revenue records is suitable land for grant of

house sites to 64 persons. On 16.08.2014 in Rc.E3/1614/2014, the

District Collector accepted the proposal of the Tahsildar,

Santhanuthalapadu and directed to hand over new pattas to the

eligible beneficiaries and also directed to process the request of legal

heirs of the freedom fighter for mutation of their names in the revenue

records as per the rules in force.

11) In view of the directions issued by Respondent No.2,

Respondent No.5/Tahsildar verified the persons who were allotted

house pattas in Sy.No.392/17 for the purpose of implementing the

order of Joint Collector dated 01.03.2013. Respondent No.5 MSM,J WP_6787_2015

ascertained the list of eligible persons to shift them from

Sy.No.392/17 to 394/2 as per the orders of Joint Collector, Prakasam

District dated 01.03.2013.

12) Except the first petitioner - Sk. Fathima, who was allotted

Plot No.109, all the other nine petitioners are not affected in

Sy.No.392/17 and that, Plot No.122 is allotted to one Patan Guljar,

but she is not party to the present writ petition. However, the

beneficiaries of Plot Nos.43, 36, 42, 26, 68, 53, 62 and 28 as alleged

in the writ petition are not covered in Sy.No.392/17 and they are not

going to be disturbed as alleged, and finally requested to dismiss the

writ petition.

13) Respondent Nos.6 to 13 filed detailed counter affidavit,

contending that late Pabbisetty Adiseshaiah who was freedom fighter,

participated in freedom struggle. Father of Respondent No.6 originally

belonged to Ongole in Prakasam District. The then Government of

Andhra Pradesh issued G.O.Ms.No.921 dated 05.09.1992 granting

freedom fighters pension in his favour. Further, the then Tahsidlar of

Ongole granted Ac.2-00 cents of land in Sy.No.392/17 situated in

Pernamitta Village of Prakasam District and issued D-Form Patta

bearing D.K.No.145/1985 dated 17.11.1992. Thus, the father of

Respondent No.6 was in possession and enjoyment of the property by

cultivating the same during his lifetime. The then Mandal Revenue

Officer of Santhanuthalapadu also granted pattadar pass book

bearing No.493835 in favour of the father of Respondent No.6 and

also title deed bearing Khata No.34 in accordance with the provisions

of Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971.

14) After demise of father of Respondent No.6, the

Respondent Nos.6 to 13 who are his sons and daughters, succeeded MSM,J WP_6787_2015

the land assigned to him under freedom fighters quota, since it is

heritable as per the Rules.

15) The Respondent Nos.6 to 13 filed an application dated

26.07.2011 before the Tahsildar, Santhanuthalapadu and also before

the Joint Collector, Ongole to mutate the names in the adangals and

other revenue records of Pernamitta Village by incorporating the

names of Respondent Nos. 6 to 13 in respect of the said land and also

requested for issuance of pattadar pass books and title deeds in their

favour. The then Tahsidlar, Santhanuthalapadu conducted detailed

enquiry and submitted report dated 13.08.2011 to the Revenue

Divisional Officer, Ongole stating that without cancelling the patta

validly granted in favour of the father of Respondent Nos.6 to 13, the

then Tahsildar issued house site pattas in respect of the said land in

favour of 64 persons. By the said report submitted by the then

Tahsildar to the Revenue Divisional Officer, Ongole, the Tahsildar

opined that an extent of Ac.2-00 cents of land has been given to

Pabbisetty Adiseshaiah, who was a freedom fighter and who is the

father of the Respondent Nos.6 to 13 and unless those pattas granted

in favour of 64 persons are cancelled, the names of Respondent Nos.

6 to 13 cannot be mutated in the revenue records.

16) Respondent Nos. 6 to 13 further contended that, theya re the

owners of the property and in view of the orders of Joint Collector

dated 01.03.2013, pattas were cancelled which were issued in favour

of the petitioners in respect of Sy.No.392/17 for Ac.2-00 cents in

Pernamitta Village, treating the land as assigned to the freedom

fighter and when the pattas granted in favour of 64 persons were

cancelled by exercising power under B.S.O 15(18), by following

necessary procedure, the petitioners are disentitled to claim any relief

in the writ petition.

MSM,J WP_6787_2015

17) Respondent Nos. 6 to 13 reiterated the contentions raised in the

counter affidavit filed by Respondent No.5, about passing order dated

01.03.2013 by the Joint Collector, Ongole, resuming the land from 64

pattdars on the ground that it was allotted by mistake, as it was

granted in favour of Pabbisetty Adiseshaiah under freedom fighter‟s

quota and that the petitioners are not entitled to continue in

possession and enjoyment of the property, if they are really in

possession of any part of the land and requested to dismiss the writ

petition.

18) During hearing, Sri I. Koti Reddy, learned counsel for the

petitioners contended that, the petitioners are in possession and

enjoyment of various plots allotted to them in Sy.No.392/17 of

Pernamitta Village and Respondent No.5 along with his men are

trying to dispossess the petitioners without cancelling the pattas

granted in their favour, which is illegal and high-handed and that the

persons who are in settled possession cannot be dispossessed, except

by due process of law and requested to issue a direction as prayed

above.

19) Whereas, learned Government Pleader for Revenue contended

that, out of the ten petitioners, first petitioner alone is in possession

of the land allotted to her in Sy.No.392/17 and the other petitioners

are not affected parties by order passed by the Joint Collector dated

01.03.2013. When the petitioner Nos. 2 to 10 are not in possession

and enjoyment of the property in Sy.No.392/17, they are not entitled

to claim protection, as the patta gratned in favour of 64 persons

including the first petitioner were cancelled by exercising power under

B.S.O.15(18) after following necessary procedure and that, necessary

proceedings are initiated to allot the land to dispossess the persons

after cancellation of patta granted in their favour by the Joint MSM,J WP_6787_2015

Collector exercising power under B.S.O.15(18) to provide house sites

in Sy.No.394/2 of Pernamitta Village. Therefore, eviction of the

persons who are in occupation of the property after cancellation of

patta by exercising power under B.S.O.15(18) is not legal and

requested to dismiss the writ petition.

20) Whereas, Sri I. Gopal Reddy, learned counsel for Respondent

Nos. 6 to 13 contended that Respondent Nos. 6 to 13 are in

possession and enjoyment of the property admeasuring an extent of

Ac.2-00 cents in Sy.No.392/17 of Pernamitta Village and they

succeeded the property from their father Pabbisetty Adiseshaiah,

being the legal heirs in whose favour patta was granted under

Freedom Figher‟s Quota. Therefore, except the first petitioner, no

other petitioner is in possession and enjoyment of the property

covered by Sy.No.392/17 of Pernamitta Village, which was assigned to

the father of Respondent Nos. 6 to 13 and requested to dismiss the

writ petition.

21) Considering rival contentions, perusing the material available

on record, the point that arises for consideration is:

"Whether any of the petitioners are in possession of the plots or in possession and enjoyment of the property in land in Sy.No.392/17 of Pernamitta Village? If so, whether Respondent No.5 made any high-

handed attempt to dispossess them and whether Respondent No.5 be restrained from dispossessing these petitioners from the land admeasuring an extent of Ac.2-00 cents in Sy.No.392/17 of Pernamitta Village?

MSM,J WP_6787_2015

P O I N T:

22) Undisputedly, 64 persons were granted pattas assigning house

sites in Sy.No.392/17 of Pernamitta Village. But, later, on the

representation made by Respondent Nos. 6 to 13, an enquiry was

conducted and pattas granted in favour of 64 persons with respect

to land in Sy.No.392/17 were allegedly cancelled. According to the

counter affidavit of Respondent No.5/Tahsildar, the first petitioner

was allotted Plot No.109 in Sy.No.392/17 and Petitioner Nos. 2 to

10 were not allotted land by issuing patta in Sy.No.392/17.

Therefore, their rights are not affected and the question of

interference with the possession and enjoyment of Petitioner Nos. 2

to 10 does not arise. But, the first petitioner - S.K. Fathima w/o

Karimulla who was allotted land bearing Plot No.109 is the person

who is affected. The other affected persons did not approach this

Court seeking any relief. Therefore, the first petitioner alone- S.K.

Fatima alone is entitled to protect her possession from the high-

handed action of Respondent No.5, if any. A copy of the order

dated 01.03.2013 in D.Dis.E3/2773/2011 would clinchingly

establish that pattas granted in favour of the first petitioner and

other 63 persons in Sy.No.392/17 of Pernamitta Village were

cancelled by conducting necessary enquiry, exercising power

under B.S.O.15(18), wherein, Joint Collector observed as follows:

i. To procure the original house site pattas granted to 64 individuals immediately and endorse cancellation entries there on and file them in his office under proper record.

ii. To arrange for grant of alternative house sites in Government land / alienated DK Patta lands to the eligible people among the 64 individuals as per rules and after due process of law.

MSM,J WP_6787_2015

iii. Process the request of writ petitioners for mutation of their names in the revenue records as per rules in force.

23) Based on the order dated 01.03.2013 in D.Dis.E3/2773/2011,

learned counsel for the petitioners contended that 64 persons in

whose favour pattas were granted are still in possession and

enjoyment of the property and they cannot be dispossessed except

by due process of law. The list of 64 beneficiaries to whom pattas

were granted in Sy.No.392/17 is also placed on record. The

petitioners were allegedly granted land in Sy.No.392/17, but, the

first petitioner was allotted Plot No.109 in Sy.No.392/17, assigning

land of an extent of 2 ½ cents. The other petitioners are not

granted any patta in the land covered by Sy.No.392/17. As per the

list provided in Paragraph No.5 of the counter affidavit, which is

not denied by filing any rejoinder to the affidavit, so also the list of

persons whose pattas were cancelled by exercising power under

B.S.O.15(18) annexed to the order dated 01.03.2013 in

D.Dis.E3/2773/2011. Thus, the first petitioner alone is the

directly affected person, as this factum is not denied. At best, the

first petitioner is entitled to claim protection till she is provided

with an alternative house site in government land /alienated DK

patta land by granting patta, as directed by the Joint Collector in

the order dated 01.03.2013.

24) Though the petitioners made serious allegations against

Respondent No.5 and their men, that they are attempting to evict

these petitioners from the land assigned to them, those allegations

are not substantiated by any material, since they are not in

possession of the land in Sy.No.392/17, except the first petitioner

- S.K. Fathima in an extent of 2 ½ cents assigned to her. Hence, MSM,J WP_6787_2015

Petitioner Nos. 2 to 10 are not entitled to claim any protection, as

their rights are not affected in the plots allotted to them

respectively, except the first petitioner.

25) As admitted by Respondent Nos. 2 to 5 and Respondent Nos. 6

to 13 in their respective counter affidavits, grant of pattas for the

land in Sy.No.392/17 of Pernamitta Village is not in dispute, so

also cancellation by the Joint Collector by exercising power under

B.S.O.15(18). For obvious reasons, the petitioners did not

challenge the cancellation order passed by the Joint Collector on

any ground. Therefore, this court is refrained from deciding the

validity and legality of the order passed by Respondent No.2 dated

01.03.2013.

26) In any view of the matter, the beneficiaries by grant of patta i.e.

the first petitioner and 63 other persons are not in possession and

enjoyment of the property and no proceedings are placed on record

that if any of them are dispossessed by following necessary

procedure after cancellation of the patta. However, the 63 persons

whose rights are affected on account of the order dated 01.03.2013

are not before this Court, except the first petitioner whose patta

was cancelled by order dated 01.03.2013. At best, the first

petitioner is entitled to claim protection till alternative house site is

allotted to her, while declining to grant any order in favour of

Petitioner Nos. 2 to 10, as their rights were not affected on account

of cancellation of pattas by order dated 01.03.2013. Petitioner

Nos. 2 to 10 failed to prove the alleged interference of Respondent

No.5 and his men with the peaceful possession and enjoyment of

the land allotted to them in Sy.No.392/17 of Pernamitta Village.

27) On close verification of the material on record and analyzing the

issue before this Court, it is clear that Petitioner No.1 is only the MSM,J WP_6787_2015

affected person out of 64 persons and Petitioner No.1 is entitled for

protection from dispossessing her from Respondent No.5 and his

men without following due process of law. When the petitioners are

in settled possession and enjoyment of the property, they cannot

be dispossessed, without following due process of law in view of

the law declared by the Apex Court in "Rame Gowda (dead) by

L.Rs. v. M.Varadappa Naidu (Dead) by L.Rs.1". By applying the

law laid down by the Hon‟ble Apex Court in the judgment referred

supra, I find that it is appropriate to restrain Respondent No.5 and

his men from dispossessing Petitioner No.1 - S.K. Fathima granted

in her favour by D Form Patta and cancellation by order dated

01.03.2013 till she is allotted alternative site in different survey

number, as admitted by Respondent No.5 in the counter affidavit

and handing over of possession of the plot available in the land

allotted to her. However, this order will not preclude Respondent

Nos. 2 to 5 to take possession of Plot No.109 allotted to Petitioner

No.1 in Sy.No.392/17, in view of cancellation of patta granted in

her favour vide order dated 01.03.2013. Accordingly, I hold that

Petitioner No.1 is alone entitled for protection from the high-

handed action of Respondent No.5, as she is in settled possession

in pursuance of DKT Patta granted in her favour, which was

cancelled earlier, while directing Respondent No.5 to allot

alternative house site to her and other 63 persons, while declining

to grant any writ of mandamus in favour of Petitioner Nos. 2 to 10

whose plots are not affected by proceedings dated 01.03.2013.

28) In the result, writ petition is allowed-in-part, declaring the

action of Respondent No.5 from making an attempt to dispossess

Petitioner No.1 as illegal and arbitrary; consequently directing

2004 (1) SCC 769 MSM,J WP_6787_2015

Respondent No.5 not to dispossess Petitioner No.1 till she is

allotted alternative house site, as directed by the Joint Collector in

order dated 01.03.2013, while declining to grant any writ of

mandamus in favour of Petitioner Nos. 2 to 10 whose plots are not

affected by proceedings dated 01.03.2013.

29) Consequently, miscellaneous applications pending if any, shall

stand closed.

______________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:01.04.2022

SP