IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 20890 of 2007 Between: D.Ashok S/o.Late Gandaiah, R/o.H.No.2-114, Nanakramguda village Sherilingampally Mandal, R.R.District ... PETITIONER AND 1 The Mandal Revenue officer, (Tahsildar) Sherilingampally Mandal,R.R.District 2 The vice Chairman, HUDA, AP Paigah Plaza Begumpet, Hyderabad 3 The commissioner , Serilingampally Municipality (Circle) G.H.M.C.at Serilingampally. 4 The Station House officer, Rayadurg at Rayadurg Cyberabad 5 M/s.Theem Constructions Pvt Ltd., Having its office at 406,V.V.Vintage Boulevard, 6-3-1093, Raj Bhavan Road, Somajiguda, Hyderabad 6 S.Jaipal Reddy S/o.Raji Reddy, R/o.306, Sharadha Apartments, Road No.1 Banjara Hills, Hyderabad 7 A.S.Lakshmi W/o. Sri A.Ramesh, R/o.Plot No.99, road No.13-A Banjara Hills, Hyderabad 8 P.Rajasri W/o.P.Buchi Prasad, R/o.Plot No.27,Durga Enclave, Road No.12 Banjara Hills, Hyderabad. 9 V.Nirajan Reddy S/o.V.V.R.Reddy, R/o.1-4-446/515, Hil Line Arcade, Bholakpur Hyderabad 10 V.Vinay Sheel Reddy S/o.V.Venugopal Reddy R/o.101/A, My Home Hill View Apts Somajiguda,Hyderabad 11 K.krishna Prasad S/o.K.Prabhakar Rao R/o.Plot N.71, Sagar Society Road No.2, Banjara Hills,Hyderabad 12 Vijay Bagrodia S/o.Late D.C.Bagrodia, R/o.Plot No.81, Ambience Fort, Attapur Village P.O. Hyderabad, Rajendranagar mandal 13 S. Sulochana Bagrodia(HUF) rep.by its Kartha Mr.Vijaya Bagrodia, S/o.late D.C.Bagrodia R/o.Plot No.81, Ambience Fort, Attapur village P.O.Hyderabad, Rajendranagar Mandal. …RESPONDENTS 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 an appropriate writ order or direction more particularly one in the nature of writ of mandamus declaring that the action of the respondents 1 to 3 in not taking any action on the representation of the petitioner dated 17.1.2006 and 7.9.2007 as arbitrary, and illegal, and violative of Articles 14,19(i)(g) 300-A of the Constitution of India and consequently direct the respondents 1 to 3 to take immediate steps against unofficial respondents from proceedings with any type of construction having the effect of change of natural of the land in Sy.No.69, to 73 situated at Nanakramguda, Serilingampally Mandal, R.R.Disrict and pass such other order or orders. Counsel for the Petitioner: MR.VIJAY B.PAROPAKARI Counsel for the Respondent No.1: GP FOR REVENUE Counsel for the Respondent No.2: SC FOR HUDA Counsel for the Respondent No.3: SC FOR MUNICIPALITIES Counsel for the Respondent No.4: GP FOR HOME Counsel for the Respondent No.5: M/s. DEEPAK BHATTACHARJEE Counsel for the Respondent No.11: MR. P. SRI RAGHU RAM The Court made the following: ORDER: Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents. The petitioner seeks to issue a writ of mandamus, declaring the action of the respondents 1 to 3 in not taking any action on the representation of the petitioner dated 17-01-2006 and 7-9-2007 as arbitrary and illegal and direct them to take immediate steps against the unofficial respondents from proceeding with any type of construction having the effect of change of nature of the land in Sy.Nos.69 to 73, situated at Nanakramguda village, Serilingampally Mandal, Rangareddy District. 1. It is the case of the petitioner that one Boomaiah grand father of the petitioner was recorded as protected tenant of the land in an extent of Ac. 5-17 guntas in Sy.Nos.69 to 73 situated at Nanakramguda village, Serilingampally Mandal, Rangareddy District. Said Boomaiah died leaving his two sons namely Bakkaiah and Gandaiah. Petitioner is the son of Gandaiah and both the sons of Boomaiah namely Bakkaiah and Gandaiah died. Thereafter, the legal representatives of Bakkaiah applied for grant of succession certificate under Section 40 of the Andhra Pradesh (Telangana Area) Tenancy and Agriculture Lands Act, 1950 (hereinafter referred to as “the Act”). for which, the petitioner and land holders were also parties. The application was allowed by an order dated 30-8- 2005 in File No.B/106/2004, holding that the family of the petitioners are entitled 50% of the rights. Subsequent to the grant of succession certificate, the petitioner filed an application for restoration of the possession under Section 32 of the Act. The said application was taken on file on 5-9-2005 in File No.B/882/2005 and as no action was taken, W.P.No.23959 of 2005 was filed and status-quo order was granted in W.P.M.P.No.31672 of 2005, later on the writ petition itself was disposed of on 3-1-2006, directing the first respondent to pass appropriate orders on the application filed by the petitioner under Section 32 of the Act within six weeks, till then, the status-quo order granted on 2-12-2005 shall continue. a) It is stated that the legal representatives of Bakkaiah filed an application under Section 19(1) of the Act surrendering their rights on 21-9-2005, stating that they have received a sum of Rs.5 lakhs for such surrender to an extent of Ac.5-17 guntas. The Mandal Revenue Officer Serilingampally, having held that the petitioner is entitled 50% of the share, erroneously accepted the surrender to the entire land during the pendency of the application under Section 32 of the Act. The action of the Mandal Revenue Officer, Serilingampalli is malafide and without any jurisdiction. Having issued the notice on the application of the petitioner under Section 32 of the Act on 14-9-2005, there cannot be any justification in accepting the surrender application on 21-9-2005. b) It is the case of the petitioner that surrender proceedings are contrary to Section 19(1) of the Act as the joint owners are not parties to the surrender application and without disposing of the application under Section 32 of the Act, accepting the surrender is illegal. As the surrender proceedings itself is illegal, any sale of the land in favour of the unofficial respondents is also illegal and unsustainable. It is stated that the succession certificate cannot be questioned by the third parties who said to have been purchased the said land, but however, the orders of the Joint Collector dated 16-12-2006 setting aside the succession certificate is sought to be questioned. It is stated that pending disposal of the case to be filed against the orders of the Joint Collector dated 16-12-2006 in canceling the successions certificate dated 30-08-2005, the nature of land cannot be changed and accordingly, the petitioner said to have made an application and seeks to issue a direction declaring the action of the respondents 1 to 3 in not taking any action on the representation of the petitioner dated 17-1-2006 and the oral representation dated 7-9-2007. c) The representation dated 16-1-2006 filed on 17-1-2006 before the respondents 1 and 2 reads as follows:- “Dt.16-01-2006. To ------- ------------ ----------------. Sub: Intimation for maintain STATUS QUO for the Sy.No.69 to 73, admeasuring Ac.2-28 guntas, situated at Nanakramguda Village – Regarding. … Sir, I, D.Ashok S/o Late Gandaiah, Resident of Nanakramguda Village, Serilingampally Mandal, Ranga Reddy District. We filed WPMPs 31672 of 2005 and 35916 of 2005 in Writ Petition No.23959/2005 on the file of Hon’ble High Court of Andhra Pradesh. The Hon’ble High Court of Andhra Pradesh was pleased to pass interim orders in above said W.P., vide W.P.M.P.No.31672 of 2005 and 35916 of 2005, stating that Agriculture Land in Sy.Nos.69 to 73, admeasuring Ac.2-28 Guntas, situated at Nanakramguda village, Serlingampally Mandal, Ranga Reddy District. The Hon’ble High Court passed an order as follows:- “SUCH IS THE SITUATION; I DEEM IT APPROPRIATE TO DISPOSE OF THE WRIT PETITION DIRECTING THE 1ST RESPONDENT TO PASS APPROPRIATE ORDERS ON THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 32 OF THE ACT WITHIN SIX WEEKS FROM THE DATE OF RECEIPT OF A COPY OF THIS ORDER. TILL THE APPLICATION OF THE PETITIONERS IS DISPOSED OF, THE STATUS QUO GRANTED ON 2-12-2005 SHALL CONTINUE. NO ORDER AS TO COSTS” Hence therefore we are intimating to this Hon’ble authority some of the respondents are constructing illegally and not following the Hon’ble High Court order, therefore, kindly stop the further construction in respect of the land bearing Sy.Nos.69,70,71,72 and 73 admeasuring Ac.2-28 guntas situated at Nanakramguda Village, Serilingampally Mandal, Ranga Reddy District. Copy of High Court order enclosed herewith. Hence this letter. Thanking you Sir, Sd/- (D.ASHOK) Petitioner No.4.” d) It is stated that four sons of late Gandaiah filed W.P.No.885 of 2006 to declare the action of the Mandal Revenue Officer, Serilingampally in accepting the surrender of protected tenancy rights in file No.B/1182/2005 dated 5-10- 2005 in respect of the said land in an extent of Ac.5-17 guntas in Sy.Nos.69 to 73, situated at Nanakramguda village, Serilingampally Mandal, Ranga Reddy District as arbitrary and illegal and direct the Mandal Revenue Officer to dispose of the application of the petitioner filed under Section 32 of the Act in File No.B/882/2005 without reference to the said surrender orders and the said writ petition was disposed of by setting aside the order of the Mandal Revenue Officer dated 5-10- 2005, surrendering the tenancy rights and directing the Mandal Revenue Officer to enquire into the whole issue once again keeping in view of the findings recorded in the order dated 30-8- 2005 passed under Section 40 of the Act. e) The Mandal Revenue Officer passed the order dated 30- 8-2005 on the application under Sections 40 and 32 of the Act, granting succession certificate in favour of the sons of late Bakkaiah as they are the lineal descendants of the deceased protected tenant to an extent of ½ share in the said land. W.P.No.23959 of 2005 was filed by the four sons of Gandaiah to declare the action of the Mandal Revenue Officer, Serilingampally in not taking any action on the application of the petitioner filed under Section 32 of the Act in File No.B/882/2005 in respect of Ac.2-28 guntas in the said survey numbers, and the said writ petition was disposed of on 3-1- 2006, directing the first respondent to pass appropriate orders on the application filed by the petitioner under Section 32 of the Act and till the application filed by the sons of Gandaiah is disposed of, the status quo granted on 2-12-2005 shall continue. 2. It is the case of the contesting respondents that Boomaiah was not the protected tenant, but one of his sons Mr.M.Bakkaiah was alone recorded as protected tenant as per the entry in the khasra pahani (1954-55). The said land was owned by Mr.Osman khan and others and M.Bakkaiah son of Boomaiah was alone recorded as protected tenant and he released his rights willingly in favour of the legal heirs of the owners and accordingly, proceedings were issued by the Mandal Revenue Officer in Order No/B1182/1995 dated 5-10- 2005. Subsequent to the surrender, the legal heirs of the owners sold the entire property in favour of the third parties. a) The petitioner and his brothers filed W.P.No.23959 of 2005 to consider and dispose of their representation filed under Section 32 of the Act and the said writ petition was disposed of on 3-1-2006 directing the Mandal Revenue Officer, Serilingampally to pass appropriate orders within six weeks. Another writ petition filed by them in W.P.No.885 of 2006 questioning the surrender order dated 5-10-2005 was also disposed of on 17-1-2006, directing the Mandal Revenue Officer to enquire into the whole issue once again and pass appropriate orders in view of the orders passed on 30-8-2005. It is stated that the predecessors in title of the respondents questioned the said order of the Mandal Revenue Officer, Serilingampally dated 30-8-2005 in order No.B/106/2004 in granting succession certificate to an extent of ½ share in respect of the said land in favour of the petitioner and his brothers under Section40 of the Act and the said appeal was allowed by the Joint Collector, Ranga Reddy District in Case No.F2/1655/2006 dated 16-12-2006, holding that as per various Judgments of this Court, the Mandal Revenue Officer cannot determine the question of successions under Section 40 of the Act and accordingly set aside the said order dated 30- 8-2005. It is stated that as the basis on which the petitioner and his brothers claiming right, title and interest to an extent of ½ share of the said land is only the succession certificate dated 30-8-2005 and when that succession certificate itself has been set aside by the Joint Collector, the question of considering their representation does not arise. b) It is stated that either the father of the petitioner Gandaiah or their grand father Boomaiah were recorded as protected tenants, but as per the khasra pahani (1954-55) Bakkaiah alone was recorded as protected tenant. Therefore, it is not open for the petitioner and his brothers who are the petitioners in the aforesaid two writ petitions to initiate contempt proceedings for violation of the said orders as the basis on which the relief has been granted directing the respondents to conduct enquiry with regard to the surrender proceedings or restoration of possession under Section 32 of the Act based on the succession order dated 30-8-2005 itself is set aside. Unless the order of the joint collector dated 16-12-2006 is set aside, the petitioner and his brothers are not entitled to any relief. 3. The relief claimed in this writ petition is only to declare the action of the respondents in not taking any action on the representation of the petitioner dated 17-1-2006 and the oral representation dated 7-9-2007. The representation dated 16-1- 2006 filed on 17-1-2006 before the respondents 1 and 2 is only to pass orders under Section 32 of the Act in File No.B/882/05 in respect of Ac.2-28 guntas in Sy.Nos.69 to 73 of Nanakramguda Village. The application filed under Section 32 of the Act was only pursuant to the succession certificate granted by the order of the Mandal Revenue Officer in proceedings No.B/106/2004, dated 30-08-2005. When the said succession certificate granted by the Mandal Revenue Officer, Serilingampally, dated 30-8-2005 itself has been set-aside by the Joint Collector, Ranga Reddy District in Case No.F2/1655/2006 dated 16-12-2006 in an appeal filed by Smt.K.Sujini and five others, the 11th respondent herein is also one of the appellant, the claim of the petitioner and his brothers pursuant to the succession certificate vanishes and no further action needs to be taken. It is stated that the Joint Collector, Ranga Reddy District set aside the succession certificate granted under section 40 of the Act, holding that the Mandal Revenue Officer is not competent to grant succession certificate to the protected tenancy rights in exercise of the powers conferred under section 40 of the Act, therefore, the succession order of the Mandal Revenue Officer dated 30-8- 2005 in Case No.B/106/2004, dated 30-8-2005 is set-aside, directing the respondents therein i.e., all the sons of Gandaiah and others to approach the competent Civil Court for grant of succession certificate. It is stated that the said order dated 16- 12-2006 is not modified, set-aside, annulled or stayed so far in the so-called Civil Revision Petition said to have been filed with delay and it is not even numbered. Thus, it is the case of the respondents that when the basis for filing an application is only the succession certificate dated 30-8-2005 and when the succession certificate itself has been set-aside by the order of the Joint Collector dated 16-12-2006, the pending application under Section 32 of the Act in file No.B/882/2005 is non-est in law and no proceedings can be initiated under Section 32 of the Act at the instance of the petitioner and his family members. It is stated that the direction issued by this Court in setting aside the surrender proceedings dated 5-10-2005 and directing the Mandal Revenue Officer to enquire into the matter in view of the succession order dated 30-8-2005 passed under Section 40 of the Act has become infructuous as the succession order dated 30-8-2005 itself has been set aside. It is further stated that the order of this Court in W.P.No.23959 of 2005 directing to dispose of the application filed under Section 32 of the Act is also become infructuous as the application under Section 32 of the Act was filed based on the succession order dated 30-8-2005, which was set aside by the Joint Collector by order dated 16-12-2006. The whole basis to file this writ petition seeking to issue a writ of mandamus directing the respondents to consider the representation of the petitioner dated 17-1-2006 is the succession order dated 30-8-2005 and when the said order itself has been set aside by the Joint Collector, Ranga Reddy District, the question of considering the representation does not arise as no right, interest or title accrued in favour of the petitioner so far. Therefore, I am of the opinion that the relief claimed by the petitioner is misconceived and the petitioner is not entitled for any relief pursuant to the interlocutory orders passed by this Court in W.P.No.23959 of 2005. The order in W.P.No.23959 of 2005 was only to pass appropriate orders on the application of the petitioner and his brothers filed under Section 32 of the Act. Admittedly the said application is based on the succession order dated 8-5-2005. As the said order itself has been set aside, nothing survives to be considered on the application filed under Section 32 of the Act by the petitioner and his brothers. In view of the aforesaid facts and circumstances of the case, the relief claimed in this writ petition is misconceived and the petitioner is not entitled for any relief and accordingly, the writ petition is dismissed. No order as to costs. ________________ V.ESWARAIAH, J Date: 03-03-2008. Shr.