THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P. No. 4582 of 2006 Dated. 17–03-2011 Between: Vadlapudi Padmavathamma …Petitioner Vs. The District Collector, Nellore and others. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 4582 of 2006 Dated: 17-03-2011 ORAL ORDER: The assignment by the 2nd respondent – the Mandal Revenue Officer, Nellore District, Nellore of 12 ½ ankanams each in favour of respondent Nos. 4 and 5 in proceedings bearing Rc.B.No. 1329/05, both dated 26-05- 2005 in survey Nos. 1934 and 1935, Nos. 219-A and 219- B at Nellore Bit-I, Nellore, allegedly in subversion of the decree in O.S.No. 61 of 1984 on the file of learned Subordinate Judge, Nellore, is challenged in this writ petition. The grant of assignments of 12 ½ ankanams each in favour of respondent Nos. 4 and 5 is unusual even by revenue standards. The assignments came to be made in the following circumstances. According to the petitioner, she occupied Plot No. 219 admeasuring about 33 ankanams in the lay out covered by survey Nos. 1934 and 1935 of Nellore Bit-1, in 1977 and applied to the 2nd respondent for assignment. Having encroached upon this property, indisputably a government property, the petitioner put a thatched shed and was living thereat along with her children since 1977. She constructed a house in an extent of about ten (10) anakanams with brick walls and an asbestos sheet roofing and put up a septic tank lavatory as well. On 24- 12-1982 she left for Podalakur to meet her family members and on return on the same day, the 3rd respondent was in illegal occupation of the premises/property. The petitioner lodged a complaint with the police about this illegal dispossession by 3rd respondent on 25-12-1982. Thereafter she filed a suit in forma pauperis under Section 6 of the Specific Relief Act, 1963 (for short ‘the Act’) against the 3rd respondent being O.S.No. 61 of 1984, on the file of the Court of learned Subordinate Judge, Nellore, seeking recovery of possession of the property as she was illegally dispossessed of by the 3rd respondent. The 3rd respondent alone was arrayed as the defendant in the suit. By the judgment and decree dated 28-10-1996, O.S.No. 61 of 1984 was allowed and on a finding that the petitioner (plaintiff) was illegally dispossessed by the 3rd respondent (defendant therein), the learned Civil Court directed the 3rd respondent to vacate the property and put the petitioner back into possession. Costs were also awarded and the plaintiff directed to pay the court fee as well. Aggrieved by the decree in O.S.No. 61 of 1984, the 3rd respondent filed a misconceived appeal A.S.No. 3 of 1997 before the Court of learned IV-Additional District Judge, Nellore, though no appeal is maintainable against a judgment in a case under Section 6 of the Act. Thereafter the 3rd respondent sought withdrawal of the appeal with liberty to pursue appropriate remedies, in I.A.No. 14 of 2004. This application was filed by the 3rd respondent after the petitioner had filed I.A.No. 13 of 2004 seeking dismissal of the appeal as not maintainable. By the order of the learned District Judge dated 01-07-2004, I.A.No. 13 of 2004 filed by the petitioner was allowed and consequently A.S.No. 3 of 1997 was dismissed on 10-07- 2004. Aggrieved thereby the 3rd respondent filed C.R.P.No. 5482 of 2004 and by the judgment of this Court dated 17-01-2005 the said revision was also dismissed. The petitioner in view of the recalcitrant attitude of the 3rd respondent in delivering back possession to her, notwithstanding the decree in O.S.No. 61 of 1984 which had since attained finality, filed E.P.No. 101 of 2004 for delivery of possession. Therein the 3rd respondent filed a memo contending that the judgment and decree in O.S.No. 61 of 1984 was a nullity since the Special Court under the provisions of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 alone had jurisdiction and sought dismissal of E.P.No. 101 of 2004. The Executing Court rejected this objection asserted on behalf of the 3rd respondent and ordered delivery of possession. Continuing the saga of attrition, the 3rd respondent filed C.R.P.No. 524 of 2005 challenging the order of the Executing Court rejecting his application for rejection of the execution petition, reiterating the ground of patent lack of jurisdiction of the civil Court. He filed another C.R.P.No. 1177 of 2005 assailing the judgment and decree in O.S.No. 61 of 1984 dated 20-08-1996. By a common order of this Court dated 13-04-2005 both C.R.P.Nos. 524 of 2005 and 1177 of 2005 were dismissed. After all his litigative campaigns came to a naught, the 3rd respondent found yet another fertile avenue for denying the petitioner her just desserts under the decree in O.S.No. 61 of 1984. He approached the revenue officials, as appears from the latest counter affidavit filed by the 1st respondent – the District Collector, Nellore, on 07-03-2005. The 3rd respondent applied to the 2nd respondent for grant of assignment of a house site patta respecting an extent of 25 ankanams in Plot No. 219 in survey Nos. 1934 and 1935 of Nellore Bit-I, Nellore (a substantial part of suit schedule property covered by the decree in O.S.No. 61 of 1984), claiming long standing possession over the said land. This application suppressed the material fact that by the decree (which had attained finality) of a court of competent jurisdiction, the petitioner’s (plaintiff’s) dispossession over the property in question was wholly illegal and by employment of physical force and in transgression of the law of land. Curiously though the 3rd respondent applied for assignment of land in his favour, the 2nd respondent recommended assignment of house site pattas in the name of the 3rd respondent’s wife and son – respondent Nos. 4 and 5, though the said individuals did not apply for grant of house site pattas. In what circumstances the 3rd respondent recommended for grant of house site pattas in favour of respondent Nos. 4 and 5 in the context of the 3rd respondent alone applying for grant of house site pattas, the respondents do not clarify. Neither the counter affidavit filed on behalf of the respondent Nos. 3 to 5 nor the counter affidavit of the respondent Nos. 1 and 2 set out the sequence of events leading to the above creative recommendation of the 2nd respondent, but then, as already observed, unique are the ways of the Revenue Department. It would also appear from the counter of the 1st respondent dated 08-03-2011 that enquiries made by the 3rd respondent prior to the issue of assignment pattas in favour of respondent Nos. 4 and 5 revealed (asserted to be available on record), that municipal tax demand notice for the year ending 31-03-2003 in favour of the 3rd respondent; municipal tax receipts dated 23-06-2001; copies of electricity bill demand raised in the name of 3rd respondent and electricity bills paid (by the 3rd respondent) dated 30-06-2000, 16-07-200 etc., were available. Clearly in the light of the judgment of the civil Court in O.S.No. 61 of 1984 the 3rd respondent’s continuance in possession of the property in question is wholly without the authority of law, in transgression of the law and on exercise of force by the 3rd respondent, as found in the judgment dated 28-10-1996 in O.S.No. 61 of 1984. On 26-05-2005 the 2nd respondent passed two orders both bearing Rc.B.No. 1329/05, assigning 12 ½ ankanams site each in favour of respondent Nos. 4 and 5 respectively. It is contended on behalf of the petitioner that despite the judgment dated 28-10-1996 in O.S.No. 61 of 1984; proceedings for restoration of possession by way of an execution petition, in the context of illegal dispossession by the 3rd respondent; and despite all litigative campaigns of the 3rd respondent against the said judgment coming to a naught, the 3rd respondent is actively resisting execution of the decree in the execution petition filed by the petitioner by a causing claim petition to be filed on behalf of the respondent Nos. 4 and 5 on the basis of the assignments made by the 2nd respondent in favour of these respondents. The legitimacy of the claim of the 3rd respondent himself for assignment is founded on possession acquired by his illegal dispossession of the petitioner; so declared in O.S.No. 61 of 1984. In the counter affidavit of the 1st respondent – the District Collector, Nellore, there is a clear and unambiguous averment that the assignment in favour of the respondent Nos. 4 and 5 is irregular since only the 3rd respondent had made an application for assignment. It is also not clear how the assignment was made in favour of two members of the 3rd respondent’s family – the wife and the son. There appears to be no system of audit of the exercise of the unlimited defacto powers of the Mandal Revenue Officer, parting away with the government lands as though they were spoils of office. Be that as it may. The learned Government Pleader for Assignment appearing for the official respondents in this case and on the basis of the averments in the counter affidavits contends that there is no record available to verify whether the petitioner had made an application for assignment of land in her favour. It is also contended that the petitioner is not entitled to assignment of land since she is a permanent resident of Podalakur town of Nellore Distrit which is 30 K.M. away from the Nellore Municipal Corporation. Further, the petitioner owns an extent of Ac.5-05 of land in survey No. 214-1 of Podalakur village wherein she has constructed a three storied building, in an extent of 24 ankanams. It is not for this Court in this writ petition to consider whether the petitioner is eligible for assignment of land. That is not the relief sought either. If the petitioner is ineligible for assignment of land or was ineligible when she earlier made application, if she has made one, it is for the appropriate revenue authority to consider and pass an appropriate order, when the application comes up for consideration. The only concern writ at large in this case is that the 3rd respondent by a series of stratagems, all of which have failed in the litigative trajectory, has successfully subverted the declaration of his illegal conduct (of dispossessing the petitioner by force from her possession of the extent of 25 ankanams land in Plot No.219 in survey Nos. 1934 and 1935 of Nellore Bit-I, Nellore) and notwithstanding the judgment dated 28-10-1996 of the civil Court in O.S.No. 61 of 1984; and with the active co- operation of what is admitted to be wholly illegal and unsustainable act on the part of the 2nd respondent. Such conduct is an abuse of the process of the Law and the 3rd respondent now seeks to take shelter behind the assignment made in favour of his son and wife -- respondent Nos. 4 and 5. As already noticed the assignment in favour of respondent Nos. 4 and 5 was on the basis of an application by the 3rd respondent in his name. The basis for such application by the 3rd respondent appears to be his possession over the property which possession he acquired by employment of raw force and in transgression of the law of the land as declared and verified by the judgment of the civil Court in O.S.No. 61 of 1984. This illegal possession so declared by the civil Court is sought to be legitimized by the 3rd respondent and his dependants – respondent Nos. 4 and 5 on the basis of the facilitative orders of assignment passed by the 2nd respondent. The 1st respondent’s counter states that the assignment in favour of the son of the 3rd respondent viz., the 5th respondent was found to be irregular. The 1st respondent’s counter is silent on the issue whether the conduct of the 3rd respondent in acquiring possession of the property in question by use of force as evidenced by the decree of the Civil Court in O.S.No. 61 of 1984 disentitles the exercise of discretion by the State of granting assignment in favour of persons who violate the law. At any rate, how assignment was made in favour of respondent Nos. 4 and 5 on the basis of an application by the 3rd respondent, the 1st respondent counter does not explain. All the material asserted by the District Collector to be available on record evidencing the possession of the 3rd respondent in the property viz., municipal tax receipts, municipal tax demand notice, electricity bill demands and receipts of electricity bills paid are in the name of the 3rd respondent; on the basis of and during the currency of his illegal occupation of the property. Neither the 1st respondent nor the 2nd respondent explain why the State should reward the dependants of respondent No.3 i.e., respondent Nos. 4 and 5 with assignment of land for the conduct of forcible dispossession of another person albeit an encroacher of government land. On the above analysis and in view of the admission of irregular assignment in favour of respondent Nos. 4 and 5 in the counter affidavit of the 1st respondent – the District Collector, the assignments made by the 2nd respondent in favour of respondent Nos. 4 and 5 are unsustainable and are accordingly quashed. When the petitioner urged that having regard to the meandering litigation sought to be blocked at every stage by the 3rd respondent, this Court should direct restoration of possession in her favour by respondent Nos. 3 to 5, the learned counsel for these respondents states that since the execution petition instituted by the petitioner is pending consideration, the petitioner should be left to pursue her remedies therein. This Court cannot be oblivious to the fact that O.S.No. 61 of 1984 was filed in forma pauperis by the petitioner, seeking recovery of immoveable property of 33 anakanams in survey Nos. 1934 and 1935 of Nellore Bit-I, Nellore claiming to have been forcibly dispossessed by the 3rd respondent. The suit was filed within the period of limitation as required for instituting such suits qua Section 6 (2) of the Act. The suit was decreed on 28-10-1996. A misconceived appeal -- A.S.No. 3 of 1997 filed by the 3rd respondent thereagainst was also dismissed by the appellate Court on 01-07-2004. The spate of revisions filed by the 3rd respondent being C.R.P.Nos.5482 of 2004; 524 of 2005 and 1177 of 2005 were also dismissed by the two orders of this Court dated 17-01-2005 and 13-04- 2005. Nearly fifteen (15) years after the decree in O.S.No. 61 of 1984, the petitioner has not been able to enjoy the just desserts of her litigation, on account of the litigative blitzkrieg by and on behalf of the 3rd respondent. The rule of law is designedly subverted by the respondent Nos. 3 to 5 and with the facilitative conduct of 2nd respondent. In the totality of circumstances, this Court, as sentinel on the qui vive does not consider it appropriate to withhold jurisdiction and permit the respondent Nos. 3 to 5, to further subvert and deflect the course of justice by endless recourse to procedural rituals. Accordingly the writ petition is allowed. The two orders of assignment passed in proceedings bearing reference Rc.B.No. 1329/05, both dated 26-05-2005 assigning 12 ½ ankanams each in favour of respondent Nos. 4 and 5 in survey Nos. 1934 and 1935 in plot Nos. 219-A and 219-B (earlier Plot No. 219) in Nellore Bit-I, Nellore District are quashed and declared void ab inito and in abuse of discretion and a result of illegal exercise of discretion by the 2nd respondent. The respondent Nos. 3 to 5 are directed to forthwith vacate Plot Nos. 219-A and 219-B in survey Nos. 1934 and 1935 of Nellore Bit-I, Nellore District and deliver vacant possession of the said property to the petitioner. The 1st respondent is directed to ensure execution of this order and compliance thereof by the respondent Nos. 3 to 5 with utmost expedition and in any event within a period of one week from the date of receipt of a copy of this order. However, nothing in this order shall be construed as an expression by this Court on the merits of the petitioner’s claim for assignment of land in her favour. While it is open to the respondent Nos. 1 and 2 to consider assignment of land in favour of the petitioner and/or respondent Nos. 3 to 5 or any of them, the respondent Nos. 1 and 2 shall bear in mind the manner and methodology by which the 3rd respondent entered into possession of the lands in question and shall consider whether such conduct disentitles exercise of discretion by the State in granting assignment in favour of persons who violate the law. The 1st respondent in the counter affidavit has asserted that disciplinary proceedings have been initiated against the then Mandal Revenue Officer and Revenue Inspector. The 1st respondent shall monitor the expeditious conclusion of the disciplinary proceedings initiated against the then Mandal Revenue Officer or any other officer under his jurisdiction who has in abuse of official discretion granted assignments in favour of non- applicants and in the facts and circumstances of this case. Since the 3rd respondent has acted in flagrant disregard of the due process of law, I consider it appropriate to allow the writ petition with costs of Rs.10,000-00 (Rupees ten thousand only) payable by 3rd respondent; out of which Rs.5,000-00 (Rupees five thousands only) shall be paid to the petitioner and balance amount of Rs. 5,000-00 (Rupees five thousand only) shall be deposited to the credit of the Secretary, A.P. State Legal Services Authority, Hyderabad, within a period of two months from the date of receipt of a copy of this order. The writ petition is allowed as above with costs. __________________________ JUSTICE GODA RAGHURAM Dated: 17-03-2011 Pvks/* Nb:- A copy of this order shall be marked to the Secretary, A.P. State Legal Services Authority, Hyderabad for appropriate follow up action for recovery of the amount awarded to the A.P. State Legal Services Authority, Hyderabad. b/o pvks/*