Mansoor vs The District Collector Of ...
2023 Latest Caselaw 479 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

              WRIT PETITION No.30004 of 2013

ORDER:

This Writ Petition is filed for the following relief:

".....to issue a Writ of Mandamus, or any other appropriate writ, order or direction, to the respondents No.1 to 3 to assign the plot earmarked by the respondent NO.3, a physical extents of 25x19 in Sy.No.572/A1, 743/A2, of Kallur (V) & (M) vide proposal No.Rc.B/1195/Dt.17.09.2012 beside the gate of TTD for assign to the petitioners, as consequently direct the Respondent No.5 to accept the same as their earlier proposal through the D.O.Roc.in Prop.2/57869/76, Dt.21.04.2000 to adjust in the existing site for accommodate of allocation to the petitioners in sequence of the implementation of this Hon'ble Court's Judgments, as stated above to meets the ends of the justice and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case."

2) This Court has heard the learned counsel for the

petitioners, the learned Government Pleader for Assignments

and the learned standing counsel for Tirumala Tirupati

Devasthanam.

3) This is a case with a long and chequered history. The

petitioners before this Court have claimed relief on the basis of

their long and settled possession of the property. Learned

counsel for the petitioners points out that initially the Writ

Petition No.5643 of 1977 was filed by the petitioners'

predecessors in title along with others. It is held in that case

vide orders dated 09.11.1979 that Ac.0-64 cents in

Sy.Nos.742/A2 and 572/A2 of Kurnool Town be separated from

the property allotted to TTD Kalayanamandapam and it was

decided that Ac.0-64 cents should be allotted to the hut

dwellers. It is also pointed out that subsequently suit in

O.S.No.293 of 1995 was also filed against the District Collector

and others for permanent injunction by the petitioners'

predecessors. The order passed in W.P.No.5643 of 1977 was

also considered and a permanent injunction was granted to the

plaintiff therein. An appeal in A.S.No.36 of 1998 was also

decreed in favour of the appellant/plaintiff overruling the

objection of the Revenue. A second appeal in S.A.No.1287 of

2003 was also filed against the order of the First Appellate

Court and in S.A.No.1287 of 2003 a direction was given to the

plaintiff therein and her legal heirs to make an application to

the District Collector for allotment of the site and District

Collector was directed to consider the same on its own merits.

This order was passed on 12.10.2011. Thereafter a

representation was made by the present writ petitioners in

2012, which is sent to Tahsildar by the District Collector. The

Tahsildar in turn gave an endorsement dated 17.09.2012 for

allotment of a site. This recommendation of the Tahsildar,

dated 17.09.2012, is sought to be enforced through a

Mandamus in this Writ Petition. Learned counsel points out

that a site has been located and despite the success of the

petitioners and their predecessors in the earlier long litigation

the allotment was not made in favour of the petitioners.

Therefore, learned counsel submits that the petitioners are

entitled to an order as prayed for, since the availability of site

has been borne out by the record including the

recommendation dated 17.09.2012. It is pointed out that the

consent for allotment is been unnecessarily withheld and that

too without reasons. So the petitioners pray for an order.

4) For the respondents first arguments are advanced by the

learned Government Pleader for Assignment. It is asserted that

while there is no dispute about the earlier litigation, the

occupation of site by the petitioners' predecessors in title etc., it

is pointed out that the entire site of Ac.1-72 cents it was given

to the TTD for construction of Kalyanamandapam. With regard

to the balance site of Ac.0-64 cents it was allotted to 27

members, but the petitioners' predecessor in title is not a part

of 27 members. It is also pointed out that the recommendation

dated 17.09.2012, on which the petitioners relying, states that

the site is within the premises of the TTD and is next to the

gate. Therefore, the consent of the TTD is necessary to allot the

plot in favour of the writ petitioners. The land in question is

also under the possession of the TTD. This was informed to the

writ petitioners and two alternative sites were proposed to allot

a site to the petitioners. One is a plot in Sy.No.217 of Kalluru

village and a further plot in Sy.No.780/8B/J in Sudda Vagu

village. Therefore, it is submitted that it is not possible to allot

the site recommended by the Tahsildar without the consent of

the TTD.

5) For the TTD also learned standing counsel argued the

matter. It is reiterated that for the allotment of Ac.0.64 cents

27 beneficiaries were identified and land was allotted to them.

The petitioners' predecessor did not find a place in the said list.

The TTD had noticed that allotment of site next to the actual

area allotted to the TTD was resulting in unlawful activity being

carried out like consuming liquor etc., within the area and,

therefore, the TTD wanted to construct a compound wall

around the Kalayana Mandapam after eviction of the occupant.

It is also reiterated that the present site proposed to be allotted

to the petitioners is fully within the site that was earlier allotted

to the TTD. In that view of the matter, learned standing

counsel submits that the TTD cannot give its consent and the

petitioners should be called upon to choose one of the

alternative sites that have been identified under the Indiramma

Housing programme or otherwise. It is, therefore, submitted

that the petitioners cannot seek a mandamus.

6) This Court after considering all the submissions notices

that it is a fact that the petitioners' predecessor was recognized

as an occupier of a vacant site. It is also a fact that some of the

encroachers / occupiers were allotted house sites. The

petitioners' predecessor was not found to be in the list of 27

encroachers, who were allotted house sites. The petitioners'

predecessor pursued the legal remedies and ultimately in

S.A.No.1287 of 2003 a learned Judge of this Court clearly held

that since the suit is only for a permanent injunction to protect

the possession of the property, the petitioners do not have a

right to claim for allotment of a particular site. He held that the

grievance on this account cannot be considered in the Second

Appeal as the suit is only for the permanent injunction.

Therefore, the learned single Judge dismissed the Second

Appeal but gave a liberty to the plaintiff to approach the

Government by making an application. The District Collector /

concerned authorities were directed to consider the request of

the plaintiff for allotment of site in view of the orders of this

High Court and also the allotment made to others. Pursuant

thereto a representation was made and it was considered. The

Tahsildar found that there is a bit of site which is available near

the plots allotted, but next to the gate. The Tahsildar, however,

noticed that the site could be allotted only if the TTD authorities

consent to the same. This Court notices that the proposal

made by the Tahsildar himself in a letter dated 17.09.2012

clearly shows that the site proposed to be allotted is within the

premises of the TTD. The TTD has gone on record stating that

it s not possible to provide the site within the compound wall of

TTD Kalyana Mandapam. The plot suggested for allotment by

the Tahsildar is within the extent of Ac.1-72 cents alienated to

the TTD. It is also pointed out that there is an issue about the

antisocial elements using the said plot during the night time

and spoiling the premises by consuming liquor etc. Therefore,

TTD has taken a stand that it is not possible to give consent for

allotment of particular site. The TTD also relies upon the fact

that Plot No.433 near Dal Mill, Kurnool-Bellary road is capable

of allotment to the petitioners under Indiramma Urban Housing

Scheme. To the same effect is the counter affidavit filed by the

State. It is reiterated that in 2008 itself a Plot No.433 near Dal

Mill, Kurnool is allotted for the petitioners' predecessor. This is

reiterated in Tahsildar's endorsement on 19.03.2013, wherein

the writ petitioner was directed to approach the Tahsildar,

Kalluru, with regard to allotment of Plot No.433 near Dal Mill,

Kurnool. It is also clearly reiterated that the allotment of site

within the compound of the TTD is not feasible.

7) This Court is also of the opinion that it has to concur with

what is argued by the learned counsel for the respondents that

the mandamus is a discretionary remedy. The petitioners

should have a right and there should be a corresponding

violation on the part of the respondents of that right. Then the

Court can issue a mandamus directing the respondents to do

the needful. In the case on hand, the petitioners do not have a

"right" as is recognized under law for the particular plot of land

recommended in the Tahsildar's letter dated 17.09.2012. The

recommendation itself states that the consent of the TTD is

necessary. The consent of the TTD has not been given for the

said plot of land. On the other hand, both the TTD and the

revenue authorities clearly state that the petitioners are entitled

for an alternative bit of land but not the exact bit of land which

they claim. The Tahsildar, Kalluru, in the course of his counter

affidavit in paragraph 11 and 12 is clearly admitted that two

bits of land are available for allotment as on the date of filing of

the counter viz., Ac.0-02 cents in Sy.No.217 of Kalluru village

under Indiramma Urban Housing Scheme or a bit of Ac.0-02

cents of Sy.No.781/J of Sudda vagu of Kalluru village, for the

second plot of land the permission of Municipal Corporation of

Kurnool is necessary.

8) In this view of the matter, it is held that the petitioners do

not have a right that can be enforced through a mandamus,

leaving it open to the petitioners to take up the offer made by

the revenue authorities and as specified in paragraphs 11 and

12 of the counter affidavit. If the petitioners are interested in

seeking allotment of the land of Ac.0-02 cents in

Sy.No.217/Kalluru village or Sy.No.781/J of Sudda Vagu of

Kallur Village as mentioned in paragraphs 11 and 12 of the

counter, they should make an application for the same within

two weeks from the date of receipt of a copy of this Court. The

respondents are directed to process the said application, if it is

otherwise in accordance with law, within a further period of two

weeks and decide on the same as per law and on its merits

only. It is made clear that the petitioners are not entitled to a

mandamus with regard to the specific plot of land that is

mentioned in the Tahsildar's letter dated 17.09.2012 in

Rc.B/1195, besides the TTD gate.

9) With the above observations the Writ Petition is disposed

of. There shall be no order as to costs. Consequently,

Miscellaneous Applications pending, if any, shall also stand

dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:30.01.2023.

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