IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL.No.1484 of 2004 Dated:30-06-2011 Between: Smt D.Jhansi Prakash and others. ….Appellants And R.Satyanarayana Raju and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No. 1484 of 2004 JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad) This is an appeal under Clause 15 of the Letters Patent directed against the Orders passed in W.P.No.2931 of 2001 by the learned Single Judge of this Court dated 23.11.2003. The appellant No.1 herein is the respondent No.4 in the writ petition and during the pendency of the appeal she died and the appellant Nos.2 to 4 are brought on record as her legal representatives. The respondent No.1 herein filed the writ petition for a Writ, Order or direction in the nature of Certiorari calling for records relating to and in connection with the orders passed by the respondent No.1 in G.O.Ms.No.9, Social Welfare (LTR-2) Department, dated 05.01.2001 and the Orders of the respondent No.2 in C.M.A.No.l5 of 1994 dated 06.01.1995 and the Orders of the respondent No.3 in LTR No.7 of 1994, BCM, dated 25.07.1994 and to declare entertainment of the case under Regulation-I of 1959 as without any power or jurisdiction and to quash the same. The appellant herein submitted a petition on 07.06.1994 before the respondent No.3 alleging that she had acquired rights in an extent of 0.50 cents of land in Sy.No.20, which corresponds to R.S.No.10/2 of Bhadrachalam village through an agreement of sale dated 14.06.1976, by paying an amount of Rs.2,500/-, from its pattedar and owner Sri S.Jonathan and claimed that she was delivered possession of the said land by the pattedar and owner. She complained that Ayyappa Swamy Temple Committee and 4 others encroached into the land and in spite of her request, they did not vacate the same. She therefore approached the respondent No.3 for invoking the jurisdiction under A.P. Scheduled Areas Land Transfer Regulations 1959 (1 of 1959) for restoration of possession. Respondent No.3 has registered the said petition as LTR.No.7 of 1994 and by his Orders dated 25.07.1994 directed restoration of possession to the appellant herein. The 1st respondent thereupon preferred C.M.A.No.15 of 1994 before the respondent No.2, the Agent to the Government and the same was rejected by him by his Orders dated 06.01.1995. Thereafter, the respondent No.1 preferred a revision before the respondent No.1 and the same was also rejected. The writ petitioner (respondent No.1 herein) had pleaded that the local residents intended to construct Sri Ayyappa Swamy Temple and construction of the same was started in the year 1984 in the river Poramboke, which vests in the Government. He also asserted that the respondent No.4 (the appellant herein) was never in Bhadrachalam; she was not a tribal; and her only intention is to prevent construction of temple. He also pleaded that the respondent No.3 has evinced unwarranted interest in the proceedings and soon after the presentation of the petition by the respondent No.4, he visited the spot and passed several orders from time to time on the basis of his personal knowledge and guess work and in the haste he disposed of the said case without even ensuring that the parties were served with notices and without providing an opportunity to them to adduce any evidence. He also pleaded that persons from whom the respondent No.4 claimed title came on record before the respondent No.3 and disputed the very existence of agreement of sale in favour of the respondent No.4 and despite the same, respondent No.3 allowed the petition. Respondent No.2 filed the counter-affidavit pleading that the respondent No.3 has issued notice in Form-E to the occupant under rules 7 (1) and 7 (2) of APSALTR Rule 1969 framed under Regulation 1/59 on 06.06.1994, asking to show cause as to why he should not be ejected from the said land and both the parties appeared through their counsel before respondent No.3 and put forth their arguments and basing on the material available before the respondent No.3, he passed the Orders in LTR Case No.7/94 dated 25.07.1994 for ejectment of the occupant or whoever in possession of the land and directed to restore possession of the land to the respondent No.4 under the cover of a Panchanama. In the appeal also notices were served on both the parties and the counsel for the petitioner and respondent No.4 present and submitted their arguments and after perusal of the lower Court record, the respondent No.2 dismissed the appeal by Order dated 06.01.1995. In the revision also respondent No.1 after hearing both the parties and on perusal of the lower Court record dismissed the revision petition vide G.O.Ms.No.9, Social Welfare (LTR-2) Department dated 05.01.2001, thereby confirming the orders of the respondent Nos.2 and 3. According to respondent No.2 the land in question is not a River Poramboke and per the report dated 30.05.1994 of the Deputy Inspector of Survey the main structure of Lord Ayyappa Swamy Temple is existing in Sy.No.15 and an extent of Ac.6.00 was registered as village site in Sy.No.10/2 P and FCM work was not yet done for the village site. The schedule land of the respondent No.4 is not concerned with the temple. The Deputy Inspector of Survey in his report has referred two land acquisition awards for which some lands were acquired for public purpose including the land of vendor of the respondent No.4. He also pleaded that as per the Orders of the Settlement Officer, Bhadrachalam in case No.7351 dated 30.03.1981, the case was dropped by not granting patta to the vendor of the respondent No.4 and ordered to record as village site as the land is not being used for agricultural purposes. The Director of Settlements, Hyderabad in A.P.No.223/81 dated 11.03.1983 had set aside the order of the Settlement Officer, Bhadrachalam, allowed the appeal and granted patta to the vendor of the respondent No.4 and two others and no further appeals were preferred by the Department. The petitioner admittedly encroached the scheduled land without any title. Respondent No.3 had considered the claim petition of the legal heirs of the Pattedar and passed the ejectment Order on 25.07.1994. The learned Single Judge by his Order dated 03.11.2003 has set aside the Orders passed by the respondent Nos.1 to 3 and remanded the matter to the respondent No.3 for fresh adjudication duly ensuring service of notice on all the parties before it and after giving adequate opportunity to them, to put forth their respective cases and also directed to deal specifically with the questions, such as, social status of the 4th respondent, identity of the land, title of the respondent No.4 vis-à-vis the claimants, etc. Learned counsel for the appellants has pleaded that the appellant No.1 had purchased the scheduled land under an agreement of sale dated 14.06.1976 by paying consideration of Rs.2,500/- from its pattedar and owner Sri S.Jonathan and as the writ petitioner had encroached into the land, she approached the respondent No.3 for invoking jurisdiction of the said respondent under the A.P. Scheduled Areas Land Transfer Regulations 1959 (1 of 1959) and the said authority after due enquiry had passed an Order ejecting the writ petitioner and others who are in occupation of the said land and since the writ petitioner has no manner of right or title over the said property and as he is encroacher into the land of the appellant No.1, was rightly ejected by the Orders of the respondent No.3, which were confirmed by the respondent Nos.1 and 2 and the said Order does not warrant any interference by this Court in the appeal. Learned counsel for the writ petitioner/respondent No.1 on the other hand has pleaded that writ appellant has no title to the disputed property and the legal heirs of the vendors of respondent No.4 also approached the respondent No.3 disputing about the existence of agreement of sale in favour of respondent No.4 and also pleaded that the respondent No.4 is not a scheduled tribe and she is not entitled to purchase the land under an agreement of sale in the scheduled area. When the title and possession of the appellant is questioned by the respondent No.1, the adjudicating authority ought to have decided the said issue before ordering for ejection of the writ petitioner from the disputed property. The writ petitioner pleaded that the Agency Divisional Officer, Bhadrachalam failed to consider the issue of deriving title by the appellant herein under the agreement of sale dated 14.06.1976, but by relying on the evidence of Sri T.P. Varadha Rao, Ex-Patwari, Bhadrachalam, who drafted the agreement of sale had concluded that the said sale transaction was a genuine transaction and that the Ayyappa Swamy Temple people are trying to take possession of the said land, for which the petitioner before him i.e. writ appellant has legal right as it was purchased from Sri S.Jonathan, one of the pattedar through agreement of sale dated 14.06.1976. Respondent No.4 failed to provide an opportunity to the appellant No.1 to establish that the petition schedule land is a river poramboke and he was in uninterrupted possession of the schedule land since 1984 as claimed by him and the same is evident from the order passed by the respondent No.4 as he has disposed of the same in haste. The application was presented before him on 07.06.1994 and he disposed of the same on 25.07.1994 and in the Order stated that the petitioner prayed for early disposal of the case as she was at present residing at Hyderabad and had little resources while the respondents were local people with political connections and financial resources, who were using all means, legal and force to take over possession of the land. Therefore, from the above it is evident that the respondent No.4 acted at the instance of the appellant herein in disposing of the petition hastily without giving any opportunity to the respondent No.1 herein. According to respondent No.4 during the settlement operations also the Director of Settlements, A.P., Hyderabad passed Orders in A.P.No.223/81 dated 11.03.1981 granting patta in Sy.No.10/2P measuring Ac.6.00 to Sri S.Jonathan, S.Jermaiah and Smt G.Kamala, two sons and one daughter of Sri S.S.Subbaiah. Therefore, the patta was granted to the S.Jonathan only on 11.03.1981, whereas the alleged agreement said to have been entered into by the writ appellant with S.Jonathan was on 14.06.1976 and it is evident as on the date of entering into the agreement by the writ appellant with S.Jonathan, the said S.Jonathan has no title to the said property, as such he cannot transfer any title over the property to the writ appellant. Moreover the agreement of sale does not transfer any title in favour of the writ appellant. As observed above, the said facts were not considered by the adjudicating authorities i.e. respondent Nos.4 and 3 herein. It is also further pleaded by the respondent No.1 herein that the writ appellant is not a Scheduled Tribe and she is not a resident of Badrachalam, as such the disputed land cannot be transferred in her favour as it is situated in a scheduled area. The said aspect was also not considered by the respondent No.4 herein. There is also dispute with regard to identity of the land and no specific finding was given by the respondent No.4 in that regard, but he simply relied on survey report prepared on 30.05.1994 and no notice was given to the respondent No.1 herein at the time of conducting the said survey. From the above it is evident that the respondent No.4 has not properly adjudicated the dispute between the writ appellant and respondent No.1 herein. Respondent No.3 only basing on the findings given by the respondent No.4 has dismissed the appeal and respondent No.2 has disposed of the revision by G.O.Ms.No.9 dated 05.01.2001 without considering all the aspects raised by the respondent No.1 herein. Since the issues raised by the writ petitioner are to be properly adjudicated by the respondent No.4, the learned Single Judge has rightly set aside the Order passed by the respondent No.4 on 25.07.1994 and the subsequent Orders of the respondent Nos.3 and 2 and remanded the matter to respondent No.4 for fresh adjudication. In the circumstances, the Order of the learned Single Judge does not warrant interference in this appeal. In the result, the appeal is dismissed and both the parties are directed to bear their own costs. _____________________________ JUSTICE GODA RAGHURAM _____________________________ JUSTICE P. DURGA PRASAD Dated:30-06-2011 Ksp