IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO : 2636 of 2002 Between: Smt.Totakura Satyavathi W/o.Krishna R/o.Buttaigudem Village and Mandal, W.G.District. ..... PETITIONER AND 1 The Agent to Govt./District Collector, W.G.District, Eluru. 2 The Special Deputy Collector, Tribal Welfare K.R.Puram, W.G.District. 3 The Mandal Revenue Officer Buttaigudem, W.G.District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue order, direction, writ more particularly one in the nature of Writ of Mandamus declare the proceedings of 2nd respondent in S.R.No.179/2001, dt.16-1-2002 is illegal, arbitrary and violation of principles of natural justice and contrary to the Rules framed under A.P.S.A.L.T.Regulations 1/59 as amended by 1/70 and consequentially set aside the same and to pass Counsel for Petitioner: MR.P.R.K.AMERANDRA KUMAR Counsel for Respondents: GP FOR SOCIAL WELFARE The Court made the following: THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION No.2636 of 2002 ORDER: By this petition, petitioner is seeking a declaration that the proceedings dated 16-01-2002 of the second respondent passed in S.R.No.179/2001 are illegal and arbitrary as they are passed in violation of the principles of natural justice and the Rules framed under the A.P. Scheduled Areas Land Transfer Regulation, 1959, as amended in 1970 (hereinafter referred to as ‘the Regulation’). 2. The case of the petitioner is that she is the owner of 1.92 hectares of land in R.S.No.559/2 of Buttaigudem village of West Godavari District, which was earlier purchased by her aunt Dubaguntla Chandramma prior to the commencement of Regulation 1/70. After her aunt Chandramma executed a settlement deed in her favour in respect of that land she is in possession and enjoyment of the same in her own right. When the settlement officer, by the orders dated 03-05-1977 and 29-06-1977 in S.R.Nos.542/77 and 588/77, rejected her claim on the ground that she has no title over the said land, she preferred an appeal to the Director of Settlements, Hyderabad, in A.P.No.29/97, who, by setting aside the orders of the Settlement Officer, allowed the appeal on 05.02.1998 and held that she is entitled to ryotwari patta and that order of the Director of Settlements became final. In 2001 when some of the tribals in the village tried to encroach the land in her possession, she filed W.P.No.4532 of 2001 seeking police protection and filed WPMP No.5810 of 2001 therein seeking interim orders in which a direction was given to the respondents therein to provide police protection to maintain law and order during the harvest period. In the meanwhile, a person by name Madakam Durgarao influenced the Special Deputy Tahsildar (Tribal Welfare), K.R.Puram, to file a false complaint against a person who is in no way connected with the land in her possession, and accordingly the Special Deputy Tahsildar (Tribal Welfare) filed S.R.No.179/2001 before the Special Deputy Collector (Tribal Welfare) against a person who is not connected with the land in her possession and obtained an order of eviction against that person i.e. Dayyala Venkateswararao on the ground that he failed to appear before the Special Deputy Collector (Tribal Welfare). In view of Rule 7 of the A.P. Scheduled Areas Land Transfer Rules, 1969 (the Rules), notice is mandatory to the persons in possession. As no notice whatsoever is issued to her before the Special Deputy Collector (Tribal Welfare) passed orders against Dayyala Venkateswararao, the said order passed against Dayyala Venkateswararao is not binding on her. After coming to know that an order was obtained against Dayyala Venkateswararao for his ejection from the land which actually is in her possession and when he is not in actual possession of the said property she obtained a copy of the order passed by the Special Deputy Collector in S.R.No.179 of 2001 dated 16-01-2002 against Dayyala Venkateswararao directing his eviction and filed this petition as she has no other alternative remedy except to invoke the jurisdiction of this Court under Article 226 of the Constitution. 3. In the counter affidavit filed by him, the Special Deputy Collector stated that when the Special Deputy Tahsildar filed a complaint against Dayyala Venkateswara Rao seeking his eviction stating that he who is a non-tribal is in possession of R.S.No.559/2 of Buttayagudem in contravention of Regulation 3(1) of the Regulation, notices in Form ‘E’ under Rule 7(2) of the Rules framed under the Regulation were issued on 21-08-2001 and 24- 12-2001 to Dayyala Venkateswararao to show cause why he should not be ejected from the said land. Madakam Durga Rao, a tribal, also filed a petition through Sri N.V.B.L.Achari, Advocate, alleging that Dayyala Venkateswararao son of Surya Rao, resident of Vedanthapuram village, Koyyalagudem Mandal, is cultivating an extent of Acs.4-74cents in R.S.No.559/2 situated in agency area, under an agreement of sale contrary to Regulation 2(g) of the Regulation, as amended by Regulation 1/70 and so he is liable to be evicted. On that petition also notices were sent to Dayyala Venkateswararao on 26-05-2001, 07-08-2001 and subsequent dates. But, he did not attend and did not produce any documentary evidence with regard to his right over the said Acs.4-74 cents of land in R.S.No.559/2 and so it was held that Dayyala Venkateswara Rao, a non-tribal, who is cultivating the said land unauthorisedly, is liable to be evicted and an order for restoration of the said land was passed in S.R.No.179 of 2001 on 16-01-2002. The contention of the petitioner that she is in possession of the land in respect of which ejectment order was passed against Dayyala Venkateswararao is not correct. It is true that Chandramma, the aunt of the petitioner, who was the owner of that land, executed a registered settlement deed dated 16-09-1970 in favour of the petitioner. Even that settlement also is a transfer within the meaning of Regulation 2(g) of the Regulation and hence is void. In fact the said land is in actual possession of Dayyala Venkateswara Rao and so the order of ejectment passed against Dayyala Venkateswararao is not liable to be set aside. 4. The contention of the learned counsel for petitioner is that inasmuch as the petitioner is in actual physical possession of the land, and as per Rule 7(2) of the Rules framed under the Regulation, notice to the person in possession is mandatory and as no such notice is issued to the petitioner, order of ejectment passed against Dayyala Venkateswararao, who is not in possession of the land, cannot be enforced against the petitioner. It is his contention that inasmuch as the revenue officials, under the guise of executing that ejectment order, obtained against Dayyala Venkateswara Rao, are threatening to evict the petitioner from possession of the land in S.No.559/2, though the order of ejection obtained against Dayyala Venkateswararao is not binding on her, she had no other option except to file this petition. 5. The contention of the learned Government Pleader is that during verification of the title and possession over the lands in Scheduled Areas, as Dayyala Venkateswara Rao was found to be in possession of the land in respect of which the petitioner is claiming possession under an agreement, proceedings for his eviction were initiated against Dayyala Venkateswara Rao and in any event in view of the ratio in V.VEERAIAH v. AGENT TO GOVERNMENT[1] petitioner is not entitled to any relief. 6. Petitioner did not produce any document to show her possession over the land in R.S.No.559/2 of Buttayagudem. The contention of the petitioner that she is in possession of the said land is being disputed by the respondents. Who is in actual possession of the said land is a pure question of fact which cannot be decided in a writ petition. Be that as it may, as Rule 7(4) of the Rules framed under the Regulation reads- “Where the Agent or the Agency Divisional Officer or the Officer referred to in sub-rule (2) of rule 3 has decided that person in possession should be ejected under sub- section (2) of section 3, he shall pass a decree and order in Form ‘F’ and such decree and order shall be executed by the officer specified therein in the manner in which any decree of ejectment by a competent Civil Court is executed.” it is clear that the provisions of Order 21 CPC would apply to the orders passed by the authorities under the Regulation. 7. Without filing a petition for execution nobody can obtain possession of the land, as possession of a person over the land can be disturbed only by taking recourse to due process of law. If and when the decree obtained against Dayyala Venkateswara Rao, which according to the petitioner is not binding on her, as according to her Dayyala Venkateswara Rao is not in possession of the said property, she can obstruct delivery of possession by taking recourse to the provisions contained in Order 21 CPC for that purpose. But, she cannot, on an assumption that there is likelihood of the respondents dispossessing her from her alleged possession over the land in R.S.No.559/2 of Buttayagudem by executing the decree obtained against Dayyala Venkateswara Rao, seek any writ petition directing the authorities not to dispossess her, that too without producing any prima facie evidence to show her possession over the said land. 8. Hence, the writ petition is dismissed with costs. -------------- 28.02.2008 Cvrk ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies [1] 1998(2) AN.W.R. 606