* THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NO. 23713 of 2005 % THURSDAY, 28TH DAY OF DECEMBER, TWO THOUSAND SIX # Y.Chandraiah @ Y.Chandra Reddy S/o late Ramaiah @ Ramana, Aged 60 years, Occ: Agriculture, R/o Plot No.9, Reddy Colony, Bairamulguda, Ranga Reddy District … Petitioner versus $ The Commissioner of Police Cyberabad, Ranga Reddy District, Lakdika-pool, Hyderabad and others … Respondents ! Counsel for the petitioner : Mr. M.K.Rathnam ^ Counsel for the respondents Nos.1 to 3 : Government Pleader for Home Counsel for the respondents No. 4 : Government Pleader for revenue Counsel for the respondents Nos.5 to 8 : Mr. Vedula Venkataramana < Gist : >Head Note: ? 1 1978 (2) APLJ 36 2 1982 (2) APLJ 376 3 2006 JT (3) 556 4 1988 (2) ALT 583 5 (2004) 1 SCC 769 6 (1975) 4 SCC 518 THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 23713 OF 2005 Between : Y. Chandraiah @ Y.Chandra Reddy S/o Late Ramaiah @ Ramana, Bairamulguda, Ranga Reddy District. … Petitioner And : The Commissioner of Police, Cyberabad, RR District, Hyderabad and others … Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 23713 OF 2005 ORDER : The petitioner seeks a direction to the respondents 1 to 3 to provide him protection for his agricultural operations in an extent of Ac.4.29 gts, in Sy.No.281; Ac.1.16 gts in Sy.No.282 and Ac.1.26 gts, in Sy.No.285 of Kuntloor village, RR District (‘the schedule land’). The petitioner is about 61 years old and he is pursuing relentless efforts and to obtain the fruits of his lawful entitlements to unhindered possession and enjoyment of agricultural land and a peaceful environment for his lawful occupation of agriculture in his land for nearly 40 years. The chronology of facts:- A – The litigation :- i) The petitioner’s father Yelamati Ramana @ Ramaiah was a protected tenant in respect of the schedule land, who was in possession of the land till his death on 10.1.1960. On 2.8.1967 the petitioner filed a petition before the Tahsildar, Hayatnagar Taluk, Rangareddy District (the Tahsildar) for a succession certificate. ii) The Tahsildar, by the order bearing reference No. B1/4317/67, dated 21.5.1969 declared the petitioner to be the successor to the deceased protected tenant, his father, Yelamati Ramana. Aggrieved (by the order of the Tahsildar dated 21.5.1969), the respondent No.5 herein, preferred an appeal to the Joint Collector, Hyderabad. The appellate authority set aside the order of the Tahsildar dt 21.5.1969 and remanded the matter for fresh enquiry by the Tahsildar to consider the issue whether the deceased protected tenant (Y.Ramana) was in lawful possession of the schedule land at the time of his death. On remand, the Tahsildar considered the application of the petitioner de novo, heard the petitioner as well as the 5th respondent, recorded their testimony, considered the oral and documentary evidence on record and by the order dated 8.12.80 certified succession of the protected tenancy to the petitioner as valid and declared the petitioner to be the lawful successor to the protected tenancy, in respect of the schedule land. The Tahsildar declared the possession of the 5th respondent to have been unlawfully obtained. iii) The petitioner thereafter filed an application No. B1/9785/1 dated 26.12.1980 before the Tahsildar for restoration of his possession to schedule land, u/Sec. 32(1) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (‘the Act’). Notices were issued to the respondents 5 to 8 who also filed a counter dated 10.9.1981. The petitioner claimed in his application that he was forcibly dispossessed after the death of his father in 1960 and could not agitate for restoration of his possession as he was a minor. On attainment of majority, he sought a succession certificate which was granted to him by the Tahsildar on 8.12.1980. The respondents claimed to have continued in possession of the schedule land since 1957 and to have purchased the same in 1961 from the pattadar Devender Raju Naidu. By the order dated 31.3.1982, the Tahsildar held, on the basis of the perusal of the relevant records that the protected tenant Y.Ramana expired and soon thereafter the petitioner, his son, was forcibly dispossessed as he was a minor and in view of the petitioners status as the successor to the protected tenancy having been established by the order of the Tahsildar dated 8.12.1980, the petitioner was entitled for possession u/Sec.32. The Tahsildar directed the petitioner to be put in possession of the schedule lands. iv) Aggrieved, the respondents 5 to 8 preferred an appeal u/Sec.90 of the Act to the Joint Collector, Rangareddy District. By the order bearing reference No. B4/813682, dated 15.11.1982, the appeal was dismissed. The appellate authority held that the order (of the Tahsildar) dated 8.12.1980 granting succession to the petitioner (of the right to protected tenancy) had become final, as no appeal was preferred therefrom; the appellants failed to establish that the protected tenant had surrendered his rights voluntarily; that any sale or lease granted in favour of the respondents 5 to 8 without the consent of the protected tenant Y.Ramana or the petitioner, as the case may be, is a nullity; and consequently the possession by the respondents 5 to 8 herein of the schedule land is contrary to law. Consequent on this finding the appellate authority confirmed the petitioner’s right to possession of the schedule land, upheld the order of the Tahsildar dated 31.3.1982 and dismissed the appeal. v) Aggrieved, the respondents 5 to 8 preferred a revision to this court u/Sec.91 of the Act. CRP No.1452 of 1983 was dismissed by the order dated 24.4.1985. Dismissing the revision this court held : (a) There is no evidence whatsoever that the original protected tenant (Y.Ramana) had surrendered the land to the original pattadar. Therefore the possession of the purchasers (R-5 to R-8) is unlawful; they should be dispossessed and the current protected tenant who succeeded to the right of protected tenancy of his father (the petitioner herein) is entitled to restoration of possession; (b) In view of the law declared in G.Narasaiah v Tahsildar, Mahaboobabad ( [1] ) and G.Chennaiah v State of A.P ( [2] ) once a certificate u/Sec.38-E(2) of the Act is issued after holding an inquiry in accordance with the Rules, it is conclusive between the certificate holder and the land holder or other persons who were in possession, or are otherwise interested in the land in respect of which ownership is transferred to the protected tenant or an ownership certificate is issued u/Sec.38E. The certificate cannot be challenged either in collateral proceedings or even by way of a civil suit, as the jurisdiction of the Civil Court is excluded under Sec.99 of the Act; (c) The plea of the purchasers (R5 to R8 herein) that they perfected their title by adverse possession is unsustainable. Y.Ramana was the protected tenant and continued to be so till his death (on 10.1.1960). Y.Ramana did not surrender his tenancy rights to the land holder during his lifetime. After his death, the land holder and the purchasers took advantage of the minority of Y.Chandraiah (the petitioner) and forcibly and unlawfully occupied the land. Soon after attaining majority Chandraiah (the petitioner) filed the petition on 2.8.1967 for succession. The Tahsildar enquired into the mater and after issuing notices, affording opportunity and considering the objections of the purchasers, by the order dated 8.12.1980 declared Chandraiah as the successor to the protected tenancy after declaring Y.Ramana to be the protected tenant till his death in 1960. The Tahsildar also declared the occupation of the land by the purchasers as unlawful. The purchasers did not claim that they had perfected their title by adverse possession or that the claim of Chandraiah was barred by limitation. Even if they had raised such an objection that would be unsustainable as the facts do not establish the title of the purchasers by adverse possession; and (d) In view of the several conclusions recorded on facts and analysis of the relevant legal principles, the revision fails and the concurrent findings of the Tahsildar and the Joint Collector are confirmed. vi) Respondents 5 to 8 aggrieved by the judgment in CRP No. 452/83 preferred a Special Leave Petition (Civil) No. 10352/85. The Supreme Court by the order dated 23.8.1985 dismissed the SLP. vii) Under a Panchanama held on 21.1.1986 and recorded in file No. C/3504/82 in Cc/408/85, the MRO, Hayatnagar (R4 herein) took possession of the schedule land of Ac.4.29 gts, from the respondents 5 to 8 and handed it over to the petitioner. The Panchanama recorded that the respondents 5 to 8 were present but declined to sign it and that possession was restored to the petitioner in the presence of the said respondents. viii) Respondents 5 to 8 thereafter filed OS No.35 of 1986 (on the file of the Addl. Subordinate Judge, Rangareddy at Saroornagar), for a declaration that they acquired title to the suit lands by possession adverse to Y.Ramana now represented by Chandraiah (the petitioner herein). By the judgment and decree dated 31.1.1994, the suit was dismissed with costs. In dismissing the suit the Civil Court recorded the following findings on facts : (a) That the Panchanama dated 21.1.1986 (Ex.B6 in the suit) is a public document, genuine and bona fide and establishes the delivery of possession of the schedule land to the defendant (petitioner herein) from the plaintiffs (R5 to R8 herein). (b) The plaintiffs failed to establish how the protected tenant lost possession and how they acquired possession of the suit land. (c) The civil court had no jurisdiction to go into the merits of the order of the Tahsildar, Hayatnagar, a Tribunal under the Act, particularly as the order was confirmed in appeal by the Joint Collector, in revision by the High Court and by the Supreme Court too by way of dismissal of the SLP. (d) The plaintiffs’ claim that only paper possession was delivered to Chandraiah is unsustainable. The oral testimony of PWs 4 to 6 that the plaintiffs are in possession of the land is not worthy of credence. In view of the Panchanama (Ex.B6) the plaintiffs are not and the defendant is, in possession of the scheduled land. (e) The plaintiffs are estopped from filing the suit in view of the successive upholding of the defendant’s case from the stage of the preliminary Tribunal (Tahsildar) up to the Supreme Court; (f) Since the suit is filed for declaration of title, the civil court has jurisdiction; B. The petitioner’s futile efforts to seek State aid for enforcement of his established right :- ix) Ever since the delivery/restoration of possession (on 21.01.1986) under the Panchanama, the petitioner has been petitioning to the official respondents, in particular the 4th respondent (MRO) complaining that despite induction into possession his name was not entered in the Pahani of 1986- 87 as a protected tenant and was seeking recording of appropriate entries in the Revenue records. There was no response. The petitioner preferred an application to the Joint Collector, RR District for an injunction against the respondents 5 to 8 from interfering with his possession of the property; for a direction to the police to provide protection to enable him to cultivate the land; a direction to the 4th respondent to incorporate the relevant entries in the Revenue records in the possessory column and for grant of a patta pass book and title deeds. The application was made in 1997 by way of appeal No. B4/8836 of 1997. He submitted another representation on 9.6.2004 to the 4th respondent for affecting necessary entries in the Revenue records and for issuance of pass books in respect of the schedule lands. By a representation dated 16.2.2005 the petitioner petitioned the District Collector, Rangareddy pleading that he was a poor and enfeebled farmer facing constant threats from trespassers, was having no means “for pleasing the bureaucrats in various levels for effecting fast movements to my file though there is a verdict of Hon’ble Apex Court of India in my favour”; seeking police aid to protect his possession; and for issuance of pass books with incorporation of the necessary entries in the Revenue records. He submitted another representation on 22.11.2005 to the 4th respondent by way of a reminder seeking issuance of pass books and entries in the revenue registers. x) On 30.11.2005 the 4th respondent addressed the District Collector, RR District, informing that he had written to the 3rd respondent (Hayatnagar PS) by a letter dated 21.2.2005, to provide police aid to the petitioner to carry out agricultural operations; and that meanwhile the (present) writ petition was filed xi) On 21.1.2006 the 4th respondent addressed the 3rd respondent to inform that on local inquiry and as per the statement of the neighbouring pattadars, the possession of the schedule lands was now with the respondents 5 to 8. xii) The petitioner had addressed several complaints (earlier) to the respondents 1 to 4 herein dated 14.8.1990(to R3), 27.2.2003 (to R1), 8.4.2003 (to the DSP, RR District), 16.11.2001 (to R4), 16.3.2003 (to the Joint Collector, RR District), 6.5.2003 (to R4), 27.5.2003 (to R1) and 24.6.2005 (to R1). There are also on record letters addressed by the 4th respondent to the 3rd respondent dt 21.2.2005 to provide police aid to the petitioner for his agricultural operations and another dated 13.5.2003. xiii) On 27.5.2003 the 3rd respondent informed the 4th respondent that the persons who are harassing and threatening the petitioner are in physical possession of the land and that the land should be vacated and handed over to the petitioner. The 3rd respondent also stated that the police are ready to provide protection if the 4th respondent intimates the date and time for ensuring vacant possession and is willing to be present to ensure handing over of the possession to the petitioner (protected tenant) for his agricultural operations. xiv) The 4th respondent thereupon issued a memo on 4.6.2003 to the Assistant MRI, Hayatnagar, to accompany the police to ensure police aid to enable the petitioner to cultivate his lands. On 7.5.2003 the 3rd respondent had addressed the 4th respondent stating that the police aid would be provided (to the petitioner) if the 4th respondent is present. On 31.5.2005 the 4th respondent addressed the 3rd respondent stating that the 4th respondent would be present at 5 pm on 4.6.2005 and that police aid should therefore be provided at that time for enabling the petitioner to pursue his agricultural operations. xv) There was however no police protection provided to the petitioner. on 12.12.2005 the petitioner petitioned the respondents 3 and 4 to take necessary steps for protecting his rights in respect of the land in question. He specifically alleged in this petition that respondents 5 to 8 and their henchmen and family members along with antisocial elements are threatening and preventing him from pursuing his agricultural operations. He also stated that the 3rd respondent had promised to provide police protection but no such protection was provided and that he is submitting this petition in the light of the interim order of this court dated 8.12.2005 in this writ petition. xvi) On 15.1.2006 Cr. No. 30 of 2006 was registered on the file of the 3rd respondent-PS against respondents 5 to 8 and eight other u/Secs. 447, 188, 504, 506 r/w 34 IPC. On 22.1.2000 Cr. No. 46 of 2006 was registered u/Secs. 147, 447, 437 and 506 r/w 34 IPC against the respondents 5 to 8 and some others. Another FIR 131 of 2006 was registered on 15.3.2006 by the 3rd respondent u/Secs. 447, 324 and 34 IPC against some family members of the respondents 5 to 8. The 4th respondent has filed a counter affidavit admitting to the fact relating to the status of the petitioner as the protected tenant, pursuant to the orders of the several authorities under the Act; that the orders were confirmed through the revision in this court and the dismissal of the SLP preferred by the respondents 5 to 8 in the Supreme Court; that possession was delivered to the petitioner on 21.1.1996; that the suit OS No. 35/86 filed by the respondents 5 to 8 for declaration of title and permanent injunction was dismissed; the said judgment has become final; and that if the petitioner is unable to protect his possession and raise crop because of the illegal and unlawful conduct of the respondents 5 to 8, the petitioner should seek protection either from the police or from the competent Civil Court by instituting a civil suit against those persons. The 4th respondent further stated in his counter that on his part he had forwarded the petitioner’s request for police protection to the concerned police officials. (The 4th respondent was unmindful of his statutory obligations under Sec. 32 of the Act). On behalf of the respondents 5 to 8, the 8th respondent has filed an affidavit dated 22.1.2006. This affidavit admits that the respondents 5 to 8 had lost the litigation under the Act all through to the Supreme Court; that the suit filed by them was also dismissed. They nevertheless claim to have been in continuous possession of the land all through and claim that the Pahanis verify such possession. They plead that possession of the schedule land was never delivered to the petitioner on 21.1.1986. They contend that though they lost the litigation comprehensively under the provisions of the Act, their possession and enjoyment is intact and has not so far been disturbed. These respondents urge that since they are in possession they cannot be dispossessed without following the procedure of law. They reiterate that have they perfected their title by adverse possession. They claim continuous possession on the strength of Pahanis which allegedly certify their continuous possession. These respondents also contend that this court does not have jurisdiction to execute the orders passed u/Sec.32 of the Act; that the petitioner has no right over the schedule land; and that no relief could be granted to him. The petitioner has filed a reply affidavit on 9.9.2006. The petitioner seriously disputes the reports of the respondents 3 and 4 and alleges that the 4th respondent had sent up a false report to the 3rd respondent in collusion with the respondents 5 to 8 with a dishonest intention of helping the party respondents and to subvert the orders of the authorities under the Act, of this court in the CRP and of the Supreme Court (dismissing the SLP filed on behalf of the respondents 5 to 8). The petitioner pleads that the respondents 5 to 6 trespassed into the schedule land by breaking the stone pillar fencing and on the basis of the complaint by the petitioner and after due investigation, the 3rd respondent had registered Cr. No. 157/06 and 429/06 and another on 15.5.2006. The petitioner categorically asserts that the inaction of the respondents 1 to 3 in extending protection and aid to safeguard his possession of the schedule land constitutes a failure of the State in implementing the law declared between the parties i.e., the petitioner and the respondents 5 to 8. Mr. Vedula Venkata Ramana, the learned counsel (for the respondents 5 to 8) submits that the relief (as claimed) cannot be granted; the writ petition seeks grant of police protection to the petitioner for conducting his agricultural operations; no such relief could be granted is the defence. Reliance is placed on a decision of the Supreme Court in P.R.Murlidharan v Swami Dharamananda Theertha Padar ([3]). Particular reliance is placed by Mr. Venkataramana on the observations in para 17 of this judgment, which reads as follows : “ (17) A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution of India seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution of India would remain effective and meaningful only when it is exercised prudently and in appropriate situations.” I n Murlidharan (3 supra) the relevant facts were that the respondent (before the Supreme Court) filed a writ petition seeking police protection claiming to be the Mathadhipathi of “Vadayampadi Ashramam”. Earlier he filed OS No.71 of 2000 (court of Civil Judge Junior Division), for a declaration that he was the Mathadhipathi; entitled to continue in the said capacity and alleging that he is not being permitted to discharge the duties of his office. The suit was dismissed. It was the case of the appellant (before the Supreme Court) that the General Body of the Seva Sangham had resolved on 7.1.2001 to amend the Deed of Trust and had provided for abolition of the post of Mathadhipathi and to vest the powers and duties of Mathadhipathi in the President of the Seva Sangham. There was thus a dispute as to whether the respondent was a Mathadhipathi. The Division Bench of the Kerala High Court (in the writ petition filed by the respondent) went into the question of the entitlement of the respondent; declared his entitlement to being the Mathadhipathi; and allowed the writ petition directing the police to grant adequate and effective protection. The appellants (respondents in the writ petition) preferred the appeal to the Supreme Court. The observations in para-17 (extracted above), were made by the Supreme Court in the above factual context. It must be noticed that the Apex Court clearly implied (in para-17) that a writ is maintainable on a complaint that a party had not obeyed a decree or an order of injunction passed in favour of the writ petitioner or when a party was deliberately flouting the decree or order and the police authorities were not providing him the required protection in terms of the decree or order, passed by a court having jurisdiction. The Supreme Court’s ruling is that no Writ (of Mandamus) could be granted directing protection in respect of property, status or right which has not been adjudicated upon. (emphasis supplied). The Supreme Court’s observations are also to the effect that the determination as to the existence of a right or status in respect of property must be after a process of adjudication and in an appropriately instituted civil suit. What the Supreme Court ratio clearly prohibits (under the rubric of Mandamus) is a direction to the police to protect a mere claim for possession of property without the right to property having been established in an appropriate substantive adjudicatory process. The observations in para-18 in Muralidharan (3 supra) fortify this analysis. The Supreme Court pointed out that in the case before it, several disputed questions based on the Deed of Trust and arising out of the facts pleaded by the writ petitioner and controverted by the other side, require to be resolved and therefore no relief should have been granted in the writ petition. In the case on hand, by the order dated 8.12.1980 (of the Tahsildar) the