Gangavalli Badarinadh S/O Late ... vs The Government Of Andhra Pradesh, ...
2022 Latest Caselaw 7750 AP

 IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

THE HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

          WRIT PETITION No. 2510 OF 2013


ORDER:

Heard Smt. Siva Jyothi, learned Counsel

appearing on behalf of Sri Ramesh Katikaneni, learned

Counsel for the Writ Petitioner 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 Water Tank under Rajiv Pilot Project in extent of Ac.1-00 cents out of Ac.5- 17 cents in R.S.No.188/4 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.4-17 cents, as illegal, aribitrary 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 Petitioner are that the Grand-Father

of the Writ Petitioner herein is the absolute owner of

Ac.5.17 cents in R.S.No.188/4 of Thelladevarapalli Village,

Vissannapeta Mandal, Krishna District; that the Official

Respondents have occupied an extent of Ac.1-00 cents out

of Ac.5-17 cents and illegally constructed Water Tank

under Rajiv Pilot Project 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.4-17 cents; that, this land was being used

for rearing cattle and sheep by the Grand-Father of the

Writ Petitioner, late Sri Dannapaneni Butchayya Rao; that,

this land is adjacent to the village; that, this land devolved

upon the mother of the Writ Petitioner, and thereafter upon

the Writ Petitioner, being the only son; that, as such the

Writ Petitioner is the absolute owner of Ac.5-17 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 Petitioner have also shifted their place of

residence to Vijayawada while being in possession and

enjoyment of the said vacant land; that, the Writ Petitioner

had approached the Respondents on number of occasions

to find out the reason as to why they forcibly occupied the

land and constructed Water Tank and Filtration plant

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 was constrained to file

a Suit for Injunction bearing O.S.No.84 of 2012 on the file

of the Principal Junior Civil Judge, Tiruvuru; that in the

said Suit (O.S.No.84 of 2012), the Official Respondents

filed a Written Statement acknowledging that the Grand-

Father of the Writ Petitioner 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 Petitioner 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 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 for the land (Ac.1-00 cents) illegally occupied by the Official Respondents and constructed water treatment plant and water overhead tank; and

(ii) not to interfere with the balance of land to an extent of Ac.4-17 cents in R.S.No.188/4 of Thelladevarapalli Village, Vissannapeta Mandal, Krishna District;

5. The Writ Petitioner has also placed on record

Ex.P4 which is copy of the Adangal/Pahani wherein at

Column No.12, the name of Sri Dannapaneni Butchayya

Rao is shown as Owner (name of pattadar) and in Column

No.13 the Enjoyer is shown as Rajiv Technology Pilot

Project. 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 Petitioner 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 was dismissed. Learned

counsel for the Writ Petitioner 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) has argued that, the forefather of the plaintiffs who is the original owner and landlord donated the land cover in R.S.No.319/2 and R.S.No.188/4 of Telladevarapalli Village and the same was accepted by the then Revenue Authorities and said gift came in to force, that's why either plaintiffs or their predecessors in interest did not shown the plaint schedule property in their declaration under A.P.Land

Reforms Act, 1974. In the year 1975 the predecessors of the plaintiffs filed their declaration under A.P.Land Reforms Act, 1974, the Government constructed a M.P.U.P.School at about 15 years back in an extent of Ac.0-15 cents of land in R.S.No.319/2 and the remaining land got constructed houses to land less poor.

So, the plaint schedule property is not in a possession of plaintiffs from the year 1974, as if said land was surplus, surrendered by forefathers of the plaintiffs, so their successors in interest nothing to do with the plaint schedule property as on the date of filing of this suit. Moreover, the evidence of the plaintiff not established the possession and enjoyment of the plaint schedule property as on the date of filing of the suit; due to hiking of the rates and the plaintiffs are residing at Vijayawada and filed this suit with a view to get back the property which ever given by their forefathers to the Government under Land Reforms Act, hence, the plaintiffs are not entitled for reliefs and prayed to dismiss the suit.

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

saying that the plaintiffs are in possession as on the date of filing of this suit and also it is not the case of the plaintiffs that they handed over said property to their villager to look after the same as they residing somewhere else".

6. 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, 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.

7. The Respondent No.4 namely the Thasildhar,

Vissannapeta Mandal, Krishna District has filed Counter-

Affidavit dated 20.12.2017, 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

are 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. It is also stated that though the drinking water

project was conceived in the year 2001, the project work

had commenced only on 09.05.2011 with the funds of

NABARD RIDF with an estimated cost of Rs.1,100 lakhs.

Along with the Counter-Affidavit, the Government also has

filed the photocopy of the Adangal of the Pattadars,

wherein the name of the Pattadar shown as Sri

Dannapaneni Butchayya Rao, who is none other than the

Grand-Father of the Writ Petitioner (in Column No.12) and

name of the Enjoyer shown as house sites and Rajiv

Technology (in Column No.13).

8. Having heard both the learned counsel and

having gone through the record, this Court has noticed the

following facts as admitted:

1) that, the Grand-Father of the Writ Petitioner was the absolute owner of the Ac.5-17 cents in R.S.No.188/4 of Thelladevarapalli Village, Vissannapeta Mandal, Krishna District;

2) that, there is no written conveyance as gift by the Grand-Father to the Official Respondents for a public purpose;

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

4) that, the Official Respondents have occupied Ac.1-00 cents out of Ac.5-17 cents and constructed a Water Treatment Plant and Over Head Tank;

9. Learned Counsel for the Writ Petitioner 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."

10. 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.

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

constrained to hold that the Official Respondents have

miserably failed to prove that Ac.5-17 cents in

R.S.No.188/4 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 Petitioner is

entitled for payment of compensation for the land taken by

the Official Respondents for construction of water

treatment plant and over head tank etc., in an extent of

Ac.1-00 cents out of Ac.5.17 cents in R.S.No.188/4 of

Thelladevarapalli Village, Vissannapeta Mandal, Krishna

District.

12. This Court also holds that in view of the

admitted fact that the subject land belongs to the Grand-

Father of the Writ Petitioner and this Court having

rendered a finding that the Official Respondents failed to

prove any conveyance by the Grand-Father of the Writ

Petitioner in favour of the Official Respondents, the said

Official Respondents shall not interfere with the possession

of the Writ Petitioner of an extent of Ac.4-17 cents in

R.S.No.188/4 of Thelladevarapalli Village, Vissannapeta

Mandal, Krishna District except in accordance with law.

13. Accordingly, the Writ Petition is allowed in

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

costs.

14. Interlocutory Applications, if any, stand closed

in terms of this order.

________________________________ G. RAMAKRISHNA PRASAD, J

Dt: .10.2022.

SDP

THE HON'BLE Mr. JUSTICE G. RAMAKRISHNA PRASAD

WRIT PETITION No. 2510 OF 2013

_____.10.2022

SDP