HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE C.V.RAMULU WRIT APPEAL No.1408 of 2003 Dated: 30-12-2010 Between: Pathapally Malla Reddy (died) per L.Rs. & Others …Appellants AND The District Collector, Mahabubnagar District at Mahabubnagar & Others. Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE C.V.RAMULU WRIT APPEAL No.1408 of 2003 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This writ appeal under Clause 15 of Letters Patent is directed against the order of the learned single judge of this Court made in W.P.No.24808 of 1996, dated 25.7.2003 dismissing the writ petition holding that the order of the Inams Tribunal granting occupancy rights certificate cannot be said to suffer from error of jurisdiction and that though the validity of occupancy rights certificate issued under the A.P. (Telangana Area) Abolition of Inams Act and Rules made thereunder is not directly in question, still this Court can go into the question as a collateral issue, and therefore, it must be held that the petitioners have failed to establish any enforceable right in the writ petition and no relief can be granted. The writ petitioners claim to be the protected tenants of land admeasuring Ac.5.26 guntas in Sy.No.702 of Burgula village. A certificate under Section 38-E of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 was issued in favour of Anthi Reddy and his brother Chandra Reddy. After abolition of Inams under the A.P. (Telangana Area) Abolition of Inams Act, 1955, the landlord of the first petitioner submitted an application for grant of occupancy rights certificate (ORC) and that the Revenue Divisional Officer (Inams Tribunal), Mahabubnagar issued ORC. In spite of the same, the gram panchayat is trying to occupy the said land, in respect of which ORC has been obtained, for construction of Anganwadi school by use of force and that the gram panchayat has already occupied half of the land in Sy.No.702 belonging to Chandra Reddy and distributed house- sites to the villagers without paying compensation and therefore, the action of the gram panchayat is in violation of petitioners’ rights under Article 300-A of the Constitution of India. Therefore, the petitioners filed the present writ petition seeking a writ of mandamus declaring that the respondents have no power or authority to take possession and allot the petitioners land measuring Ac.2.33 gts. out of Sy.No.702, situated at Burgula village, Farooqnagar Mandal, Mahabubnagar District to the third parties without following due process of law. A counter affidavit has been filed by the second respondent- gram panchayat stating that the petitioners or their ancestors were never in possession of the land to an extent of Ac.5.20 gts. in Sy.No.702. Late Chandra Reddy had sons viz., Rami Reddy, Malla Reddy (first petitioner) and Narasimha Reddy. Anthi Reddy had no issues and the first petitioner is not the son of Anthi Reddy. The landlords/pattadars have got rights over the subject-land. An application was filed by the first petitioner for grant of ORC before the Revenue Divisional Officer in respect of various extents of lands other than the land in Sy.No.702. An extent of Ac.2.25 gts. of land out of Ac.5.20 gts. in Sy.No.702 was acquired by the Government for house- sites 15 years back and that the government took possession of the same and some houses were also constructed in the said land. The remaining extent of land was given to the gram panchayat by the legal heirs of late Ramakrishna Rao, Srinivas Rao, Venkateswara Rao, who are the actual pattadars, for public purpose and that the gram panchayat has taken steps to construct Anganwadi Building. When the construction work was taken up and when it was completed up to basement level, the above writ petition has been filed. The land in Sy.No.702 is situated in the heart of village and no cultivation is being carried on in the said land and that the railway authorities constructed railway station in the said land long back. At that time, no objection was raised by the petitioners. Though the petitioners’ application for ORC was pending before the Revenue Divisional Officer, they have not impleaded the Revenue Divisional Officer as a party respondent to the writ petition. The dispute pending before the Revenue Divisional Officer is family partition dispute among other brothers and the petitioners but not pertaining to the land in Sy.No.702. The first petitioner and his brothers viz. Ram Reddy and Narsimha Reddy filed case No.4952 of 1995 before the Revenue Divisional Officer, Mahaboobnagar ignoring the land in Sy.No.702. A reply affidavit has been filed by the petitioners submitting that the first petitioner was adopted son of Anantha Reddy. An extent of Ac.2.25 guntas of land out of Ac.5.25 guntas in Sy.No.702 was acquired by the Government for house-sites, and that an award was passed on 31.3.1980 and on referring the matter to civil Court under Section 30 of the Land Acquisition Act for apportionment of the compensation in O.P.No.4747 of 1980 on the file of Additional Subordinate Judge, Mahabubnagar, the same was apportioned between the first petitioner and his brothers by judgment, dated 27.12.1983 in the said O.P. Even the Land Acquisition Officer in his award, dated 31.3.1980 recorded a finding that the first petitioner and his father are tenants of the said land. The learned single judge after reproducing the award, recorded a finding that so far as the proceedings before the Revenue Divisional Officer-Inams Tribunal, Mahabubnagar are concerned, the material placed by the petitioners itself would show that sons of Narasimha Reddy and sons of Rami Reddy, who are brothers of Malla Reddy filed an application for granting ORC and that they did not claim any ORC in respect of the land comprised in Sy.No.702. Late Malla Reddy had filed an objection petition, dated 21.10.1995 in the application filed by his nephews, which would show that Sy.No.702 did not form part of the claim for award of compensation. Further late Malla Reddy also filed an application in Case No.4952 of 1995 on 21.10.1995 praying the Revenue Divisional Officer to issue ORC in his favour specifying the interest of other persons mentioned therein. The ORC, dated 16.3.2000 was issued in respect of Sy.No.702 admeasuring Ac.3.26 gts. and one cannot comprehend as to how the total extent of land in Sy.No.702 is Ac.3.26 gs. when admittedly major chunk of land was already acquired in 1980. Now, we are told that against the orders of grant of ORC, an appeal was filed before the Joint Collector, Mahabubnagar, which was pending on the date when the writ petition was disposed of. Admittedly, the grant of ORC in favour of the writ petitioners by the Revenue Divisional Officer is not the subject-matter of dispute in the writ petition. What all the writ petitioners prayed is to direct the respondents not to interfere with the possession of the petitioners over the land in respect of which ORC was issued by the Revenue Divisional Officer. When it is admitted in the counter affidavit filed by the Executive Officer of second respondent-gram panchayat that ORC was issued in favour of the writ petitioners, if the gram panchayat is entitled to ORC under the gift deed executed by heirs of Ramakrishna Rao, it has to move the Revenue Divisional Officer for grant of ORC in its favour. But it is nowhere stated by the second respondent-gram panchayat that ORC was granted in its favour to claim right in the remaining extent of land after leaving the land to an extent of Ac.2.25 guntas which was acquired and subject-matter of award, dated 27.12.1983 in O.P.No.4747 of 1980. When the writ petitioners have already obtained ORC and having noticed the same, the learned single Judge cannot give an adverse finding particularly when the ORC is not challenged either by the gram panchayat or by the land holders/pattadars. Therefore, the finding recorded by the learned single judge that the order of the Inams Tribunal granting occupancy rights certificate cannot be said to suffer from error of jurisdiction and that though the validity of occupancy rights certificate issued under the A.P. (Telangana Area) Abolition of Inams Act and Rules made thereunder is not directly in question, still the Court can go into the question as a collateral issue, is unwarranted and the same is set aside. Further during the course of appeal, the order of the Joint Collector, Mahabubnagar in Case No.F2/20/2005, dated 30.3.2007 is filed which shows that the grant of ORC in favour of the writ petitioners has been confirmed to the remaining extent of land after leaving the land acquired in award, dated 27.12.1983 in O.P.No.4747 of 1980. If that be the case, the respondents cannot interfere with the possession of the petitioners over the land in respect of which, they have obtained ORC. In that view of the matter, the petitioners are entitled to the relief as claimed in the writ petition. Accordingly, the Writ Appeal is allowed. Consequently, the writ petition is allowed and the respondents are directed not to interfere with the possession of the petitioners over the land to an extent of Ac.2.33 gts. in Sy.No.702, situated at Burgula Village, Farooqnagar Mandal in respect of which, the petitioners have obtained ORC, without following due process of law. No order as to costs. ________________ A. GOPAL REDDY, J. _______________ C.V.RAMULU, J. DECEMBER 30, 2010 Tsr.