Andhra HC (Pre-Telangana)
M. Venkatarami Reddy And Ors. vs Government Of A.P. Rep., By Its ... on 22 January, 2003
Equivalent citations: 2003(2)ALD527
Author: E. Dharma Rao
Bench: E. Dharma Rao
ORDER E. Dharma Rao, J.
1. This Writ Petition is filed seeking a writ of mandamus to declare the action of the respondent Nos.1 to 4 in trying to evict the petitioners forcibly from Sy. No. 591 of Thakkalapalli village, Putluru mandal, Anantapur District without re-conveying the land taken from the petitioners in Sy. No. 589/B of Thakkalapalli village as arbitrary and illegal.
2. It is submitted by the petitioners that their ancesters are the owners and possessors of lands situated in Sy. No. 591 of Thakkalapalli village and they were in continuous possession of the land since more than 60 years and while so, the Tahsildar, Tadipatri has issued a notice under Section 7 of the Land Encroachment Act on 30.11.1981 treating them as encroachers. Pursuant to the said notice, the petitioners submitted a detailed explanation bringing to he notice of the Tahsildar about their long possession. After considering the said explanation, the Tahsildar dropped all further proceedings. Thereafter, again the M.R.O issued a notice dt.8.10.1995 under section 7 of the Land Encroachment Act, to which the petitioners submitted a detailed explanation. After receiving the explanation from the petitioners, the M.R.O. by order dt.20.11.1985, under section 6 of the Land Encroachment Act, directed the petitioners to evict the land and handover the vacant possession of the land situated in Sy. No. 591 of Thakkalapalli village. Against that order, the petitioners preferred an appeal before the Revenue Divisional Officer, Anantapur. The Revenue Divisional Officer inspected the land on 3.1.1987. Ultimately he passed an order on 28.10.1987 regularising the possession of the petitioners in respect of the lands situated in Sy. No. 591 on a condition that the petitioners should relinquish the lands in Sy. No. 589 (B) situated just adjacent to the colony for utilizing the same for grant of housing pattas to the landless poor. Against that order, the 3rd petitioner filed a revision before the Commissioner of Land Revenue and the Commissioner of Land Revenue by order dt.8.7.1990, dismissed the said revision. Aggrieved by the said order, the petitioners filed review before the Government and the Government granted interim orders on 23.9.1993 and finally on 31.1.1994 the Government dismissed the said review petition without considering the relevant facts. Then the petitioners filed W.P. No. 13817 of 1994 and obtained interim orders on 28.7.1994 and by virtue of the interim orders, they were continued in possession and enjoyment of the said property. While so, the revenue authorities came to their place and asked the petitioners to vacate the lands stating that the writ Petition filed by them was dismissed as withdrawn. It is the case of the petitioners that some fraud was played on the petitioners and got the Writ Petition dismissed though they never intend to withdraw the same. Thereafter, the persons in whose favour some pattas were alleged to have been granted pattas for the lands situated in Sy. No. 59l of Thakkalapalli village, filed W.P. No. 4103 of 1996 and the same was disposed of by order dt. 16.11.2001. After coming to know about the dismissal of the Writ Petition W.P. No. 13817 of 1994 as withdrawn, the petitioners therein have taken necessary steps to get it restored, but they could not succeed and hence the present Writ Petition has been filed for the alternative relief.
3. Learned counsel for the petitioners contends that the earlier Writ Petition was withdrawn by Venkata Subba reddy in collusion with the petitioners in W.P. No. 4103 of 1996. Therefore, they are not aware of the dismissal of the Writ Petition as withdrawn. He further submits that the respondents should have taken long standing in possession of the land by the petitioners situated in Sy.. No. 591 of Thakkalapalli village and they should have initiated land encroachment proceedings and the action sought to be intiated by the respondents is due to political reasons and similarly situated persons are continuing in possession of the lands situated in Sy. No. 591 and they are not evicted. In view of the orders passed by the Revenue Divisional Officer, Ananthapur, the petitioners have relinquished the patta lands situated in Sy. No. 589 (B) and the respondents having utilized the lands relinquished by the petitioners as per the adjustment order passed by the R.D.O. with regard to the lands in Sy. No. 589 (B), cannot now treat the petitioners as encroachers and as such the impugned order is bad and liable to be set-aside.
4. After issuance of rule nisi, respondents filed their counter affidavit stating that the petitioners are claiming possession over the land classified as village site poramboke, but they have not specifically stated that they are in possession of the lands. The respondents admitted about the issuance of Section 7 Notice on 30.11.1981 and the orders passed under Section 6 of Land Encroachment Act on 20.11.1985 and inspection of the Revenue Divisional Officer, Anantapur on 3.1.1987. It is contended that the petitioners have not submitted any piece of evidence to regularise their possession in Sy. No. 591 of Thkkalapalli village. They have raised a legal contention stating that under Board Stand Order 33(4), the relinqushment of ryotwari lands should be unconditional. B.S.O. 33 (4) reads as follows:
"The relinquishment of land may be made by means of a petition which should state that the person who is the registered holder of the fields and assessment specified hereby unconditionally relinquishment specified hereby unconditionally relinquishes such and such fields with their specified assessment and should be countersigned in proof of its genuineness and accuracy by both the village headman and karanam. Actual delivery of such a paper to the village headman or karanam should be considered sufficient. No conditional relinquishment should be allowed."
5. Ultimately the respondents have denied to record the possession of the petitioners as they have not produced any pattas granted in their favour for the lands situated in Sy. No. 591 of Thakkalapalli village.
6. The implead petitioners who are the petitioners in W.P. No. 4103 of 1996 filed Vacate stay petition 179 of 2002 in WPMP No. 541 of 2002 in WP 477 of 2002 (present Writ Petition). They have taken an objection that the Writ Petition filed by the petitioners viz., W.P. No. 13817 of 1994 was dismissed as withdrawn without any reservation of right to file any Writ Petition or initiate any proceedings for redressal of their grievance from this court. Therefore, they cannot file the present Writ Petition and this court should have dismissed this Writ Petition at the stage of admission itself. It is submitted that the vacate petitioners were granted pattas to the lands situated in Sy. No. 591 of Thakkalapalli village on 28.12.1993 along with other 41 families each 0.02 cents in Sy. No. 591 situated at Thakkalapalli village. But as the writ petitioners have been in possession of the above said land inspite of the orders of the Government in G.O.Ms. No. 932, and having no other alternative, the poor agricultural coolies who are being allotted the above said house pattas approached this court in W.P. No. 4103 of 1996 seeking a direction to the authorities and the petitioners herein to hand over the possession of the above said land in Sy. No. 591 and the same was disposed of by this court in favour of the vacate petitioners on 16.11.2001. Therefore, the present Writ Petition is not maintainable and it is liable to be dismissed.
7. After going through the facts and circumstances of the case, this court feels that any adjustment of the land made in between the petitioners and the Revenue Divisional Officer on 28.10.1987, as contended by the learned Government Pleader, is contrary to the B.S.O. 33(4) and nothing was mentioned in the counter-affidavit that they have utilized the relinquished lands of the petitioners in Sy. No. 589 (B). It is asserted by the official respondents that no documentary evidence whatsoever has been produced by the writ petitioners to show that pattas were granted in their favour for the land situated in Sy. No. 591 of Thakkalapalli village. Therefore, as rightly contended by the learned counsel for the implead petitioners/vacate petitioners, the Writ Petition is not maintainable as petitioners who filed the Writ Petition against the order of dismissal of the revision by the Government dt.23.9.1993 viz., W.P. No. 13817 of 1994 was withdrawn without obtaining any permission from the court to file the present Writ Petition.
8. Rule-1 of Order-XXIII of Code of Civil Procedure, which deals with withdrawal of suit or abandonment of part of claim, contemplated as under:
Rule-1: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) x x x x x x x x x (3) Where the Court is satisfied, -
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-
matter of a suit or part of a claim.
9. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim."
10. A perusal of the Provisions of Rule-1 (3) of Order-XXIII of the Code of Civil Procedure, makes it clear that withdrawal of suit or abandonment of part of claim is permitted where the Court is satisfied that a suit must fail by reason of some formal defect, or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
11. Secondly, the Writ Petition can be dismissed on the ground that the petitioners have no right to be in possession of the lands as no pattas were granted in their favour. Moreover, when pattas were granted in favour of the implead petitioners in the year 1993 and the relinquishment alleged to have been claimed by the petitioners is contrary to the B.S.O. 33(4), it is very difficult to accept the contention of the learned counsel for the petitioners that eviction orders were passed due to political considerations. Therefore, I feel that the Writ Petition fails. However, if the assertions made by the learned counsel for the petitioners that by virtue of the order passed by the Revenue Divisional Officer, Anantapur dt.28.10.1987, the petitioners have relinquished their patta lands situated in Sy. No. 589 (B) is correct and if lands are available on enquiry, the respondents are directed to deliver the lands to the petitioners or pay compensation within a reasonable time.
12. With the above observations, the Writ Petition is dismissed.