HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.21328 of 2008 Tuesday the 25th day of August 2009 Between: Bhonagiri Radhakrishna. … Petitioner And 1. The Gram Panchayat, Mahabubabad village and Mandal, Warangal District, rep. By its Panchayat Secretary and another. …. Respondents. * * * HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.21328 of 2008 ORDER: This Court issued notice before admission on 29.9.2008 and further issued Rule Nisi on 06.11.2008. Counter-affidavit had been filed by respondents 1 and 2 and reply affidavit also had been filed. 2. Sri A. Prabhakar Rao, learned counsel representing the petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and also the respective stands taken in the counter-affidavits of R-1 and R-2 and also the stand taken in the reply affidavit and would maintain that in the facts and circumstances of the case the writ petition to be allowed. 3. On the contrary, learned Assistant Government Pleader for Panchayat Raj and Sri G. Elisha had taken this Court through the respective stands taken in the counter-affidavits and would maintain that in the facts and circumstances of the case the relief prayed for in the writ petition cannot be granted. 4. Heard the counsel. 5. The writ petition is filed for a writ of Mandamus declaring the Proceedings dated 18.9.2008 in R.C.No.938/G.P.M/2008/A3 issued by the first respondent and also the Proceedings dated 06.9.2008 in Rc.No.B/5829/96 issued by the second respondent, as illegal, arbitrary and consequently direct the respondents to accord permission to the petitioner for construction of compound wall around the land in Sy.No.307/2 to an extent of Ac.0-30 guntas situated at Mahabubabad village and mandal, Warangal District and pass such other suitable orders. 6. It is the case of the petitioner that the petitioner is the owner of land in Sy.No.307/2 to an extent of Ac.3-00 situated at Mahabubabad village and mandal, Warangal District, and the revenue authorities issued passbooks in his favour in respect of the said land. It is also stated that on the application of the petitioner, the survey officials surveyed and demarcated the land by fixing boundaries to an extent of only Ac.2-10 guntas leaving the remaining land an extent of Ac.0-30 guntas. The petitioner filed W.P.No.26483 of 2007 seeking a direction to the respondents therein to survey the land in Sy.No.307/2 for location of the land and fixation of boundaries to an extent of Ac.3-00 and this Court disposed of the writ petition on 12.2.2008 with a direction to consider and dispose of the application, dated 08.10.2007, submitted by the petitioner for survey and fixation of boundaries in accordance with law within a period of 8 weeks. 7. It is also stated that the second respondent addressed a letter dated 14.3.2008 to the Assistant Director of Survey and Land Records, Warangal, requesting to survey the land in Sy.No.307/2 for location of land in Sy.No.307/2, as the Mandal Surveyor expressed his inability to survey the land without the help of Teepan. The second respondent also addressed another letter dated 25.3.2008 requesting the Joint Collector to give instructions to the Assistant Director of Survey and Land Records, Warangal, to survey the land in Sy.No.307/2 for location of land in S.No.307/2 and the Assistant Director of Survey and Land Records addressed a letter dated 19.4.2008 to the second respondent informing him to arrange survey of the land in Sy.No.307/2 with the help of Teepan and map through Mandal Surveyor. The Mandal Surveyor, pursuant to the order passed by this Court in W.P.No.26483 of 2007, dated 12.2.2008, surveyed the land in Sy.No.307/2 and located the remaining extent of land of Ac.0-30 guntas from out of the total extent of land of Ac.3-00 and fixed the boundaries. 8. Further it is stated that since the first respondent did not consider the request of the petitioner to grant permission for construction of compound wall around the land in Sy.No.307 to an extent of 30 guntas situated at Mahabubabad village and mandal, within the stipulated period, the petitioner filed W.P.No.18000 of 2008 and this Court disposed of the said writ petition directing the first respondent not to interfere with the possession of the petitioner without any due process of law. 9. It is also stated that the first respondent herein, pursuant to the orders passed by the second respondent dated 06.9.2008, vide Proceedings in Rc.No.938/G.P.M/2008/A3, dated 18.9.2008, directed the petitioner not to make any constructions in the land to an extent of Ac.0-30 guntas in Sy.No.307/2. It is also stated that the respondents rejected his application seeking permission for construction of compound wall in respect of the land in Sy.No.307/2 an extent of 30 guntas on the ground that the petitioner does not have title to the property. 10. Further it is stated that the Revenue Divisional Officer, Mahabubabad, issued status report, dated 21.8.2006, to the District Collector, Warangal, stating that the petitioner is having land in Sy.No.307/2 to an extent of Ac.3-00 situated at Mahabubabad village and mandal, Warangal District. The action of the respondents treating the land in Sy.No.307/2 an extent of Ac.0-30 guntas as part of land in Sy.No.307/1, is illegal, without basis and are liable to be set aside. 11. Further it is stated that the office of the Survey and Land Records, on the application of the petitioner, located and demarcated the land in Sy.No.307/2 and fixed the boundaries to it. The land located by the officials of the Survey and Land Records Department is covered by Sy.No.307/2, but not the land in Sy.No.307/1. The respondents misread the panchanama drawn by the Mandal Surveyor on 28.2.2008 and asked the petitioner to produce documents of title relating to the land in Sy.No.307/1. In such circumstances, the writ petition had been filed praying for appropriate reliefs. 12. In the counter-affidavit filed by the first respondent it is averred that according to the documents the writ petitioner is the absolute owner of the land in Sy.No.307/2 in an extent of Ac.3-00 situated at Mahabubabad village and mandal, Warangal District. According to the proceedings of the Tahsildar, Mahabubabad, the petitioner is in possession of only Ac.2-10 guntas, but not in possession of Ac.3-00 as alleged by the petitioner. According to the revenue records, Sy.No.307/1 in an extent of Ac.29-24 guntas belongs to Bandam Cheruvu (tank), which is the government land. In view of the proceedings issued by the second respondent, dated 6.9.2008, respondent No.1 issued a notice to the petitioner on 18.9.2008 stating that no permission can be granted for constructions in the government land. 13. Further it is stated that the petitioner contended that the land was surveyed by the Mandal Surveyor of the second respondent office with the help of Teepan, demarcated the land and fixed boundaries in Sy.No.307/2 to an intent of Acs.2-10 guntas after conducting panchanama. The Assistant Director, Survey and Land Records, Warangal, addressed a letter to the second respondent dated 16.5.2008 as per the Mandal Surveyor report, the land of Acs.0-30 guntas pertaining to Sy.No.307/2 was found in Sy.No.307/1, which is adjacent to the Sy.No.307/2. The revenue records clearly show that the land in Sy.No.307/1 in an extent of Acs.29-24 guntas belongs to Government. Again the Deputy Inspector of Survey and land Records, Mahabubabad, had also demarcated the lands in Sy.No.307/2 and found that the writ petitioner is in possession of Acs.2-10 guntas only. 14. It is also stated that the petitioner relied upon by the survey conducted by the Mandal Surveyor, which was found fault after verifying the records and after conducting inspection by the Deputy Inspector of Survey and Land Records, Mahabubabad, and found that the petitioner is in possession of only Acs.2-10 guntas in Sy.No.307/2. The land in Sy.No.307/1 in an extent of Acs.29-24 guntas belongs to the Government. 15. Further it is stated that on the application made by first respondent requesting to clarify whether the petitioner is in possession of Acs.3-00 in Sy.No.307/2 for grant of permission for construction, the second respondent herein had given a clarification that the petitioner is in possession of only Acs.2-10 guntas and the land in Sy.No.307/1 in an extent of Acs.29-24 guntas belongs to Bandam Cheruvu (Tank) belongs to Government. 16. In the counter-affidavit filed by the second respondent it is stated that the lands pertaining to Shikam are not transferable and the application made by the petitioner to handover Ac.0-30 guntas of land in Sy.No.307/2, which is adjacent to this survey number, being the Shikam land of Bandam Cheruvu, no relief can be granted. It is further stated that as per the revenue records Sy.No.307/2 to an extent of Ac.3-00 guntas situated at Mahabubabad village mandal, belongs to one Md. Abdul Khader and the same was purchased by the petitioner’s grandfather and his name was mutated in revenue records and after his death the name of the petitioner was mutated in the revenue records. It is not correct to state that the petitioner is in enjoyment of Ac.3-00 guntas. 17. It is also stated that the petitioner herein had submitted an application to the second respondent to demarcate the Sy.No.307/2 situated at Mahabubabad village and mandal for an extent of Ac.3-00 guntas and the Mandal Surveyor demarcated the land and fixed boundaries to an extent of Ac.2-10 guntas duly conducting panchanama. Further it is stated that there is no land available in Sy.No.307/2 to an extent of Ac.0-30 guntas, but in Sy.No.307/2 as per Teepan Ac.2-10 guntas of land is available, out of which Ac.0-14 guntas of land was handed over to the Railway Department for the purpose of doubling the line through land acquisition process. The remaining land i.e., Ac.1-36 guntas had already handed over to the petitioner herein. Whereas, in Bandam Cheruvu, there is no land available in Sy.No.307/2 and the same had informed to the petitioner through office memo No.B/5829/2006, dated 30.9.2008. 18. Further it is averred that it is a fact that the Assistant Director, Survey and Land Records, Warangal, addressed a letter dated 16.5.2008 to the second respondent informing that as per the report of Mandal Surveyor the land of Ac.0-30 guntas pertaining to Sy.No.307/2 was found in Sy.No.307/1, which is adjacent to Sy.No.307/2 is incorrect, but the Mandal Surveyor had surveyed the land bearing Sy.No.307/1 without obtaining prior permission of the superior authorities, due to which a memo had been issued to the Mandal Surveyor with a direction to submit his explanation. He had submitted his explanation stating that the remaining Ac.0-30 guntas of land in Sy.No.307/1 is a shikam land and also stated that the remaining Ac.0- 30 guntas of land is not included in Sy.No.307/1 of Mahabubabad village and mandal. 19. It is also stated that as per the revenue records the Sy.No.307/2 situated at Mahabubabad village and mandal is with an extent of Ac.3- 00 guntas, but after making demarcation by the Deputy Inspector of Survey and Land Records, Mahabubabad, it was found that the said Sy.No.307/2 is available with Ac.2-10 guntas only. 20. Further it is averred that on verification of records it is revealed that the remaining extent of Ac.0-30 guntas of land is of Bandam Cheruvu of Sy.No.307/1 for which permission was not issued for construction of compound wall by the petitioner as per the orders of the Supreme Court and treating the land in Sy.No.307/2 for an extent of Ac.0-30 guntas as part of the land in Sy.No.307/1 is illegal and incorrect. 21. It is also averred that the Mandal Surveyor, Mahabubabad had demarcated the land bearing Sy.No.307/2 for an extent of Ac.2-10 guntas, which is available there, but on verification of the revenue records, the said survey number is covered with Ac.3-00 guntas. But the Mandal Surveyor had also reported in his report dated 28.2.2008 that the Sy.No.307/1 is having Ac.0-30 guntas which belongs to Sy.No.307/2. 22. A reply affidavit had been filed again taking the stand which had been taken in the affidavit filed in support of the writ petition. Further it is stated that in reply to paras 3 to 5 of the counter-affidavit, the contention that the petitioner with an oblique motive to encroach upon the Government land filed the writ petition is not correct. Admittedly, as per the revenue records, the petitioner is the owner of land in Sy.No.307/2 to an extent of Ac.3-00. Since the Mandal Surveyor improperly surveyed and located only Ac.2-10 guntas, the contention that the Tahsildar, second respondent herein, had found that the petitioner is in possession of Ac.2-10 guntas is not correct. It is true that the extent of land in Sy.No.307/1 is Ac.29-24 guntas which belong to Bandam Cheruvu, but on resurvey, the land was found to be an extent of Ac.30-14 guntas in Sy.No.307/1 which is in excess of Ac.0-30 guntas and it is pertaining to Sy.No.307/2 belonging to the petitioner. The Mandal Surveyor had surveyed both the survey numbers i.e., Sy.No.307/1 and 307/2 and demarcated their boundaries as per the revenue records and located the total extent of land in Sy.No.307/2 and gave panchanama and map. Certain further averments also had been made in paras 4 and 5 of the reply affidavit. These are the respective stands taken by the parties. 23. The impugned proceeding reads as hereunder: “OFFICE OF THE GRAM PANCHAYAT, MAHABUBABAD MAHABUBABAD MANDAL, WARANGAL DISTRICT Rc.No.938/G.P.M/2008/A3 Dt.18.9.2008 NOTICE Sub:- Construction permission- Gram Panchayat Mahabubabad permission sought in respect of land in Sy.No.307/2 an extent of 30 guntas- Reg. Ref:1. Application dt.21.7.2008 submitted by Sri Bhonagiri Radhakrishna. 2. This office Notice dt.01.8.2008. 3. Application dt.5.8.2008 submitted by Sri Bhonagiri Radhakrishna. 4. This office letter No.938/G.P.M/2008/A3, dt.11.8.2008. 5. Bhonagiri Radhakrishna submitted application dt.29.8.2008 by enclosing the order copy of W.P.No.18000/2008. 6. The Tahsildar, Mahabubabad letter R.C.No.B/5829/96, dt.6.9.2008. 7. Advocate, Gram Panchayat Standing Counsel, High Court, Andhra Pradesh, Hyderabad, legal advise dt.17.9.2008. * * * This is to inform you with reference to the above you have submitted application under reference 1st cited seeking permission for construction of compound wall in respect of the land in Sy.No.307/2 an extent of Ac.0-30 guntas. On verification of your application, it is found that you have no title and a notice was given to you under reference 2nd cited to furnish title deeds in respect of the said land. You have given reply to the notice in the reference 3rd cited. Considering your reply the matter was discussed with the Tahsildar, Mahabubabad under reference 4th cited. You have given copy of the order in W.P.No.18000/2008 issued by the Hon’ble High Court under reference 5th cited. You have submitted application to give permission by collecting requisite fee as per the orders of the Hon’ble High Court. But the Tahsildar, Mahabubabad in the reference 6th cited has stated that as per the Revenue record the land in Sy.No.307/2 is having an extent of Ac.3-00, but on measurement with the help of Teepan an extent of the land is only Ac.2-10 gts. The land in Sy.No.307/2 as per the revenue records the total extent Ac.29.24 gts. this land is a Tank bund of Bahdham Cheruvu. The Government land in Sy.No.307/1 is pertaining to Tank Bund of Bandham Cheruvu. Therefore, it was instructed stating that it is not permissible to give any permission. The notice is issued as per the opinion given by the Standing Counsel under reference 7th cited, it is advised to settle the matter with the Tahsildar. Therefore, you are directed not to make any constructions, otherwise action will be taken as per law. Sd/- Panchayat Secretary, Gram Panchayat, Mahabubabad. To Sri Bhonagiri Radhakrishna, s/o Venkataramana, r/o Mahabubabad.” 24. It is needless to say that the writ petitioner was directed not to make any constructions; otherwise action will be taken as per law. The stand taken by the Tahsildar, Mahabubabad Mandal, Warangal District, the second respondent, in the counter-affidavit already had been specified supra. There appears to be some controversy relating to the actual extent of land. Specific stand had been taken by the petitioner relating to the purchase of land by his grandfather by virtue of a registered sale deed dated 30.10.1958. Certain proceedings relating to the survey and other aspects also had been well referred to in the affidavit filed in support of the writ petition and also the counter- affidavits. 25. In the light of the respective stands taken by the parties, this Court is of the considered opinion that a positive direction by issuance of a writ of Mandamus as such cannot be granted. But however, since the petitioner is relying upon sale transaction, let the respondents reconsider the whole issue and take an appropriate decision within a period of four weeks from the date of receipt of this order. The respondents also may take further steps for verification of the land if so advised with the assistance of the petitioner as well in this regard. 26. With the above directions, the writ petition is disposed of. No order as to costs. ___________________ (P.S. NARAYANA, J) Date: August 25th, 2009. BSB