Gangavalli Badarinadh S/O Late ... vs The Government Of Andhra Pradesh, ...
2022 Latest Caselaw 8266 AP

 IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

THE HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

          WRIT PETITION No. 2565 OF 2013


ORDER:

Heard Smt. Siva Jyothi, learned Counsel

appearing on behalf of Sri Ramesh Katikaneni, learned

Counsel for the Writ Petitioners and Sri Y.Subba Rao,

learned Assistant Government Pleader for Revenue.

2. The prayer in the Writ Petition is as follows:

"It is therefore prayed that the Hon'ble Court may be pleased to issue an order, direction or Writ more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the Respondents in occupying and constructing school building in extent of Ac.0- 15 cents out of Ac.4-00 cents in R.S.No. 319/2 of Thelladevarapalli Village, Vissannapeta Mandal, Krishna District without following procedure and without paying compensation as per law and further threatening to occupy remaining extent of Ac.3-85 cents, as illegal, arbitrary and violative of Article 31 of Constitution of India and consequently direct the respondents to pay compensation by invoking the provisions of Land Acquisition Act and to pass such other order or orders as this Hon'ble Court deem fit and proper in the circumstances of the case."

3. The facts of the case as submitted by the

Counsel for the Writ Petitioners are that the Grand-Father

of the Writ Petitioner No.1 herein is the absolute owner of

Ac.4.00 cents in R.S.No.319/2 of Thelladevarapalli Village,

Vissannapeta Mandal, Krishna District; that, the said

extent has devolved upon the father of the Writ Petitioner

No.1 and Writ Petitioner No.2 by inheritance; that, the

Official Respondents have occupied an extent of Ac.0-15

cents out of Ac.4-00 cents and illegally constructed a

School Building without following due procedure and

without paying any compensation as per law; that, they are

further threatening to occupy the balance land to an extent

of Ac.3-85 cents; that, this land was being used for rearing

cattle and sheep by the Grand-Father of the Writ Petitioner

No.1, late Sri Dannapaneni Butchayya Rao; that, this land

is adjacent to the village; that, as such the Writ Petitioners

are the absolute owners of Ac.4-00 cents; that, during the

course of time, due to various reasons, the cattle and

sheep could not be maintained and that the family of the

Writ Petitioners have also shifted their place of residence to

Vijayawada while being in possession and enjoyment of the

said vacant land; that, the Writ Petitioners had approached

the Respondents on number of occasions to find out the

reason as to why they forcibly occupied the land and

constructed School Building without following the due

process of law, but in vain; that, as the Respondents are

proposing to occupy the balance of remaining land, the

Writ Petitioner No.1 was constrained to file a Suit for

Injunction bearing O.S.No.82 of 2012 on the file of the

Principal Junior Civil Judge, Tiruvuru; that in the said Suit

(O.S.No.82 of 2012), the Official Respondents filed a

Written Statement acknowledging that the Grand-Father of

the Writ Petitioner No.1 late Sri Dannapaneni Butchayya

Rao made an Oral Gift to the State Panchayat for the

welfare of the general public, and since then the land got

vested with the Government/Panchayat; that, request

made by the Writ Petitioners to furnish any documentary

evidence evidencing oral conveyance proved futile as the

plea of the Official Respondents is that it is by Oral Gift

that the Grand-Father of the Writ Petitioner No.1 has

conveyanced this land to the Official Respondents for the

benefit of public; that the Official Respondents have also

raised an alternate and inconsistent plea that the subject

land was surrendered as excess land under the A.P. Land

Reform Act, 1974; and, that as there was no response to

the Legal Notice dated 10.12.2012, the present Writ

Petition has been filed.

4. The prayer in the present Writ Petition is

twofold:

(i) seeking a direction to pay compensation in accordance with law of the land for an extent of Ac.0-15 cents in R.S.No.319/2 which is illegally occupied by the Official Respondents and constructed School Building; and,

(ii) not to interfere with the balance of land to an extent of Ac.3-85 cents in R.S.No.319/2 of Thelladevarapalli Village, Vissannapeta Mandal, Krishna District.

5. The Writ Petitioners have also placed on record

the copy of the Adangal/Pahani wherein at Column No.12,

the name of Sri Gangavalli Badarinadh, S/o.Late Pattabhi

Rama Rao and Sri Gangavalli Sobhana Chalapathi Rao,

S/o.Late Lakshmi Narasimham are shown as Owners

(name of pattadars) and in Column No.13 the Enjoyer is

shown as School and Colony Land.

6. By Order dated 18.07.2022 the parties were

directed to disclose the status of O.S.No.82 of 2012 and to

place on record the relevant proceedings. In pursuance of

this Order, the Counsel for the Writ Petitioners has filed,

by way of Memo dated 16.08.2022, the copy of the final

Judgment and Decree dated 21.04.2015 in O.S.No.82 of

2012 passed by the Principal Junior Civil Judge, Tiruvuru,

wherein and whereby the said suit seeking Permanent

Injunction by the Writ Petitioner No.1 was dismissed.

Learned Counsel for the Writ Petitioners has drawn the

attention of this Court to Paragraph Nos.12 & 14 of the

said Judgment wherein the Trial Court has recorded the

contentions of the Revenue Authorities/Defendants therein

to the following effect:

"12) The learned Assistant Government Pleader (AGP) further argued that, According to the contention of the plaintiff his maternal grand-

father Dhannapaneni Butchaiah Rao, he blessed

with daughters only. The evidence of the plaintiff also reveals that said Dhannapaneni Butchaiah Rao as no male children and he blessed with six daughters. The plaintiff herein is the only son of his elder daughter of said Butchaiah Rao. According to the plaintiff, the plaint schedule property is fallen to the share of the mother of the plaintiff and said partition deed or partition list among the plaintiff's mother and her sisters were not placed in this suit proceedings. So, the plaint schedule property was fallen to the share of the mother of the plaintiff is not established. In such a case, the plaintiff ought to add the remaining sisters of his mother or their legal heirs. Without adding the necessary parties to this suit, it is bad for non- joinder of necessary parties. Hence, the plaintiff is not entitled for reliefs and prayed to dismiss the suit.

13) xxxxx

14) It is undisputed, during the Arguments of both parties it was revealed that, the forefather of the plaintiff is real owner of said property. In order to establish the contention of the plaintiff, except the Ex.A1 there are no documents placed by the plaintiff, except he relied on Ex.A1, stating that as if the schedule property is inherited from his forefathers and no documents was placed by him in this suit proceedings. The contention of the Revenue Authorities/ Defendants is that the forefathers of the plaintiff surrendered the said land by way of gift deed to the Government under Land Reforms Act, 1974 and plaintiff is not in a possession and enjoyment of said property from long back and he is not in a possession of suit schedule property and the Government is utilized said property for public purpose and the plaintiff can not get injunction orders as there is no base of said property as on the date of filing of this suit."

7. It is also brought to the notice of this Court that

the First Appeal bearing A.S.No.29 of 2015 filed by the

Plaintiff therein, that is the Writ Petitioner No.1, was also

dismissed on 17.08.2018 and that the Second Appeal

bearing S.A.No.217 of 2019 is pending on the file of this

Hon'ble Court.

8. The Respondent No.4 namely the Tahsildhar,

Vissannapeta Mandal, Krishna District has filed a Counter-

Affidavit dated 20.12.2017 (Common Counter Affidavit in

W.P.Nos.2510 & 2565 of 2013), wherein it has been stated

that Sri Dannapaneni Butchayya Rao has orally donated

the land to the Government for communal purpose long

back i.e. sometime around early 70s. It is also stated in

the Counter-Affidavit that no registered document to that

effect is forthcoming in this Office as this Office was newly

formed as a Mandal in 1985. It is denied in the Counter

that the Official Respondents have illegally occupied the

land. Along with the Counter-Affidavit, the Government

also has filed the photocopy of the Adangal of the

Pattadars, wherein the names of the Pattadars is shown as

Sri Gangavalli Pattbhi Rama Rao and Sri Gangavalli

Sobhana Chalapathi Rao, who are none other than the

Writ Petitioners (in Column No.12) and name of the

Enjoyer shown as School and Colony Land (in Column

No.13).

9. Having heard both the learned Counsel and

having gone through the record, this Court has noticed the

following facts as admitted:

i) that, the Writ Petitioners are the absolute owners of the Ac.4-00 cents in R.S.No.319/2 of Thelladevarapalli Village, Vissannapeta Mandal, Krishna District;

ii) that, there is no written conveyance as gift by the Grand-Father of the Writ Petitioner No.1 to the Official Respondents for a public purpose;

iii) that, admittedly no documents were produced by the Official Respondents to prove the oral conveyance of gift for the benefit of the public; and

iv) that, the Official Respondents have occupied Ac.0-15 cents out of Ac.4-00 cents and constructed a School Building;

10. Learned Counsel for the Writ Petitioners has

placed on record the Judgment of the Hon'ble Apex Court

in Sukh Dutt Ratra & Another vs. State of Himachal

Pradesh & Others (2022 SCC OnLine SC 410). At

paragraph Nos.19 to 23 the Hon'ble Supreme Court has

held as follows:

19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This court, in Manohar (supra) - a similar case where the name of the aggrieved had been deleted from revenue records leading to his dispossession from the land without payment of compensation - held:

"Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a

welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.

Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty- fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:

"300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law."

This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution..."

20. Again, in Tukaram Kana Joshi (supra) while dealing with a similar fact situation, this court held as follows:

"There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other

categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."

21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.

22. This court is also not moved by the State's contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason - construction of the Narag

Fagla Road, in 1972-1973, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court's intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.

23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances - rejected the contention of 'oral' consent to be baseless and outlined the responsibility of the State:

"12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.

12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v.

Mukesh Kumar, (2011) 10 SCC 404 :

(2012) 3 SCC (Civ) 769] held that the right

to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension."

11. The Hon'ble Apex Court has held very clearly

that in absence of written consent to voluntarily give up

their land, the deprived parties are entitled to

compensation in accordance with law. This is in the light

of the fact that in the above rendered Judgment also the

Official Respondents have not been able to establish the

alleged voluntary gift like in the present case where the

Official Respondents have held that the Grand-Father has

given Oral Gift in favour of the Official Respondents.

12. In view of the above findings, this Court is

constrained to hold that the Official Respondents have

miserably failed to prove that Ac.4-00 cents in

R.S.No.319/2 of Thelladevarapalli Village, Vissannapeta

Mandal, Krishna District has been orally gifted in favour of

the Government Pancyayat for public purpose. Having so

held, this Court further holds that the Writ Petitioners are

entitled for payment of compensation for the land taken by

the Official Respondents for construction of School

Building in an extent of Ac.0-15 cents out of Ac.4.00 cents

in R.S.No.319/2 of Thelladevarapalli Village, Vissannapeta

Mandal, Krishna District.

13. This Court also holds that in view of the

admitted fact that the subject land belongs to the Grand-

Father of the Writ Petitioner No.1 and this Court having

rendered a finding that the Official Respondents failed to

prove any conveyance by the Grand-Father of the Writ

Petitioner No.1 in favour of the Official Respondents, the

said Official Respondents shall not interfere with the

possession of the Writ Petitioners of an extent of Ac.3-85

cents in R.S.No.319/2 of Thelladevarapalli Village,

Vissannapeta Mandal, Krishna District except in

accordance with law.

14. Accordingly, the Writ Petition is allowed in

terms of the above directions. There shall be no order as to

costs.

15. Interlocutory Applications, if any, stand closed

in terms of this order.

________________________________ G. RAMAKRISHNA PRASAD, J

Dt: .11.2022.

SDP

THE HON'BLE Mr. JUSTICE G. RAMAKRISHNA PRASAD

WRIT PETITION No. 2565 OF 2013

_____.11.2022

SDP