Kanikanti Durga Prasad vs The State Of Andhra Pradesh
2023 Latest Caselaw 3816 AP

 IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
                WRIT PETITION No.6393 OF 2023


Between:

Kanikanti Durga Prasad S/o Venkateswara
Rao, Hindu, Aged about 36 years, Occ:
Cultivation,  R/o    Kothapalli   Village,
Bapulapadu Mandal, Krishna District.

                                                        ... Petitioner
Versus
1. The State of Andhra Pradesh, represented by
its    Principal    Secretary,    Endowments
Department      at   Secretariat,  Velagapudi,
Amaravati, Andhra Pradesh and two others.

                                                   ... Respondents


Counsel for the petitioner              : Sri Ch.B.R.P.Sekhar
Counsel for respondent Nos.1 & 2 : Government Pleader for
                                   Endowments
Counsel for respondent No.3             : Smt. P.Radhika, Standing
                                          Counsel

                                ORDER

The writ petition is filed seeking the following relief:

"... to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring action of 3rd respondent in threatening to demolish the weigh bridge and shed of the petitioner existing in the land admeasuring Ac.1.66 cents in R.S.No.225/9 of Vempadu Agraharam Village, Gollapalli Panchayat as illegal, arbitrary and

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violation of principles of natural justice and violation of Article 14 of Constitution of India and consequently direct the 3rd respondent not to demolish the above said weight bridge and the shed in the interest of justice and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case...".

2. (a) The case of the petitioner, in brief, is that the

petitioner is in possession and enjoyment of agricultural land of

an extent of Ac.1.66 cents in RS.No.225/9 (old Sy.No.35) of

Vempadu Agraharam Village, Gollapalli Panchayat, Nuzvid

Mandal, Eluru District. Petitioner purchased the same by way of

possessory agreement of sale dated 21.03.2022, executed by one

Yanamadala Sambasiva Rao. The total extent of land in

S.No.225/9 (old S.No.35) is Ac.2539-00 cents. Number of

farmers are in possession of the land. Disputes arose in between

some farmers and respondent No.3 Temple. Matter went upto

the Apex Court wherein a compromise order was passed in Civil

Appeal No.2541/1972 wherein it was observed that ryots in

possession of land should pay annual rents to the temple. About

five years back, officials of Endowment Department and Revenue

Department conducted joint survey and recorded the names of

farmers in possession of the lands. Land is prohibited from

registration. However, the Executive Officer of the 3rd respondent

Temple is recognizing sales under unregistered agreements and

collecting rents from them.

SRS, J W.P.No.6393 of 2023

(b) Petitioner's vendor is in possession and enjoyment of

Ac.24-06 cents, out of Ac.2539-00 cents. Out of Ac.24-06 cents,

Ac.14-80 cents is situated in R.S.No.226/1P and Ac.9-26 cents

is in R.S.No.225/9 of Vempagu Agraharam. Name of vendor is

mutated in temple records and he has been paying rents. He

sold Ac.1-66 cents in R.S.No.225/9, out of Ac.9-26 cents under

agreement of sale dated 21.03.2022.

(c) Farmers of Vempadu Agraharam Village and the

surrounding villages are cultivating palm oil gardens in the

lands of an extent of Ac.2000-00 cents and transporting the

palm oil fruit to the Ruchi Soya Palm oil factory situated in

Ampapuram. Farmers of neighbouring villages have represented

the palm oil factory to establish the weigh bridge for the purpose

of weighing the palm oil fruit and for collection of fruit from their

fields. For which, the palm oil factory has identified the land of

petitioner situated in RS.No.225/9 of Vempadu Agraharam

Village to establish the weigh bridge, as it is centrally located

place for collection. Accordingly, petitioner established the weigh

bridge and shed for palm oil fruit in the month of June 2022,

after duly obtaining permission from the Weights and

Measurements Department and when the petitioner approached

the Gram Panchayat for permission, he was informed that no

SRS, J W.P.No.6393 of 2023

permission is required from Gram Panchayat for agricultural

land. On 13.03.2023, respondent No.3 along with his staff came

to the subject land and threatened the petitioner to demolish the

weigh bridge and the shed existing in an extent of Ac.1.66 cents

in RS.No.225/9 (old Sy.No.35) of Vempadu Agraharam Village,

Gollapalli Panchayat. Hence, the writ petition.

3. (a) Respondent No.3 filed the counter affidavit, wherein,

it was contended, inter-alia, that respondent No.3-Temple is

classified under Section 6(a) of Act 30 of 1987 and is under the

administrative control of the Regional Joint Commissioner,

Endowments Department, Rajamahendravaram. Temple is being

managed by the Executive Officer. Respondent No.3-Temple is

having an extent of Ac.3409.00 cents. Respondent No.3-Temple

conducted auction for lease hold rights for an extent of Ac.52.77

cents. Regarding the remaining extent of Ac.3356.23 cents, it

was surveyed in the year 2003. As per the survey report, an

extent of Ac.2789.62 cents was in illegal possession of 1,038

enjoyers. The remaining extent of Ac.566.61 cents consists of

roads, paths, donkas, quarries, Ramileru and N.S.Canal etc.

(b) The Assistant Settlement Officer declared Vempadu

Agraharam Village in Nuzivid Mandal as Inam Village and the

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temple as Inamdar. Smt. Gadde Sasirekhamma, Sri Cherukuri

Venkata Subba Rao and Sri Potluri Lakshmana Swamy obtained

permanent pattas and leases in respect of Ac.1002.50 cents

from the then Hereditary Trustee and have filed Appeal No.237

of 1950 before the Appellate Tribunal, Vijayanagaram. The

appeal was transferred to the Appellate Tribunal, Nuzvid and it

was renumbered as A.S.No.289 of 1953. The Tribunal upheld

the orders of the Assistant Settlement Officer and dismissed the

appeal on 07.08.1953. One Potluri Lakshmana Swamy filed

L.P.A.No.263 of 1968 and the same was allowed on 19.08.1971,

by holding that Vempadu is an Estate Village. Respondent No.3

filed an appeal before the Hon'ble Apex Court in C.A.No.2541 of

1972. The Hon'ble Apex Court in its judgment dated 18.04.1990,

directed the ryots who were cultivating the lands belonged to the

Temple to pay one quintal of ground nut or its equivalent price

as fixed by the Agricultural Price Commission of Government of

India per acre per year before 31st December of every calendar

year. However, most of the ryots failed to pay the maktha. Sale

transaction took place behind the back of the temple and those

are not binding on the temple.

(c) Petitioner without taking prior permission either

from the Commissioner or competent authority has constructed

SRS, J W.P.No.6393 of 2023

the weigh bridge and shed in the land admeasuring Ac.1.66

cents in R.S.No.225/9 and he has been continuing and doing

his business in the said premises. Petitioner has no right or

interest or title over the subject property. Hence, his possession

is unauthorized possession and he is an encroacher as defined

under Section 83 of the Act 30 of 1987. Eventually, prayed to

dismiss the writ petition.

4. Heard Smt.K.Jhansi Lakshmi, learned counsel

representing Sri Ch.B.R.P.Sekhar, learned counsel for the

petitioner and learned Assistant Government Pleader for

Endowments appearing for respondent Nos.1 & 2 and

Smt.P.Radhika, learned Standing counsel appearing for

respondent No.3.

5. As seen from the record, petitioner is asserting title to the

property of an extent of Ac.1.66 cents by virtue of possessory

agreement of sale said to have been executed by one

Yanamadala Sambasiva Rao, son of Yanamadala Pichaiah.

Xerox copy of the agreement dated 21.03.2022, filed along with

the writ affidavit, would disclose that the agreement was

executed on Rs.100/- non judicial stamp. As per Explanation I,

Article 47-A of Schedule I-A of Indian Stamp Act, 1899 an

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agreement to sell, followed by or evidencing delivery of

possession of property agreed to be sold, shall be chargeable as

a sale. The document executed on Rs.100/- non judicial stamp

is not duly stamped and hence it cannot be looked into for any

purpose even for collateral purpose.

6. According to the petitioner, lands belonged to 3rd

respondent. Petitioner claims possession by virtue of possessory

agreement said to have been executed by one Yanamadala

Sambasiva Rao. It is not the case of the petitioner that the said

Yanamadala Sambasiva Rao is the owner of the lands. The

vendor of petitioner claimed title by virtue of agreement dated

06.10.2011 and the sale consideration under the agreement is

Rs.28,22,000/-. It is settled principle of law that a person

cannot transfer better title than what he has 'nemo dat quad non

habit'.

7. The prayer sought for by the petitioner is to direct the

respondent No.3 not to demolish the subject weigh bridge and

shed of the petitioner. Petitioner is aware that his vendor had

no legal right over the land and in fact, the land belonged to the

Sri Ranganadha Swamy, Gollapalli, Nuzvid Mandal. Petitioner

could have secured permission from the competent authority

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before changing the nature of the land. Without permission from

competent authority petitioner, seems constructed wight bridge

and is carrying on business. The act of the petitioner in

constructing weigh bridge in the land belonged to deity is illegal

and arbitrary.

8. Petitioner should plead and prove infringement of legal or

constitutional right to invoke the jurisdiction under Art 226 of

the Constitution of India and also corresponding legal obligation

on the part of the respondent. However, petitioner failed to

satisfy the court qua infringement of legal right. The possessory

agreement of sale relied upon by the petitioner cannot be looked

into even for collateral purpose, however petitioner is claiming

title to the property by virtue of the said document.

9. This court while exercising the powers under Art 226 of

the Constitution of India normally will not decide the title of the

respective parties. It requires evidence and adjudication by

competent civil court. In fact, in the counter affidavit filed on

behalf of respondent No.3, the petitioner's right and title over the

property is disputed.

10. However, in the counter affidavit since it was admitted by

the Executive Officer of 3rd respondent regarding construction of

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weight bridge, indeed weigh bridge was constructed without

permission of the competent authority, the Writ Petition needs to

be disposed of with certain directions. This court makes it

clear that possession of the petitioner over the schedule property

shall not give any right or title to the property in favour of

petitioner. However, even person in illegal occupation and

encroacher should be evicted by following procedure known to

the law.

11. In view of the above, the Writ Petition is disposed of

directing the 3rd respondent not to demolish the weight bridge

and shed constructed in R.S.No.225/9 of an extent of Ac.1-66

cents without following due process. 3rd respondent shall issue

notice to the petitioner within a period of three (03) weeks from

today. On receipt of such notice, petitioner shall submit

explanation. After considering the explanation, 3rd respondent or

the competent authority shall pass orders, strictly in accordance

with law, within a period of three (03) weeks and communicate

copy of the order to the petitioner.

12. Petitioner shall not make any further constructions in

Ac.1-66 cents. This order does not preclude the 3 rd respondent

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from initiating steps as per Act 30 of 1987 and the Rules made

thereunder.

13. Accordingly, the Writ Petition is disposed of. There shall be

no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand dismissed.

________________________________ JUSTICE SUBBA REDDY SATTI

Date: 08.08.2023 TVN

SRS, J W.P.No.6393 of 2023

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION No.6393 OF 2023

Date: 08.08.2023 TVN