IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 10474 of 2005 Between: Naidu Pullaiah S/o. Naidu Guravaiah R/o. Bandamcherla Village, T. Narasapuram Mandal, West Godavari District. ..... PETITIONER AND 1 The Joint Collector, West Godavari District, Eluru. 2 The Mandal Revenue Officer, T. Narsapuram Mandal, West Godavari District. 3 The Dy. Inspector of Surveys, R.D.O. Office, Eluru, 4 Achanta Lakshmi Narayana S/o. Satyanarayana T. Narsapuram Mandal, West Godavari District. .....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 to issue any appropriate writ, order or Direction more particularly, one in the nature of writ of Certiorari calling for the records relating to D.DIs.No. 10218/2000(F1) dt. 5-3-2005, of the 1st Respondent and quash the same by declaring it as illegal and void and pass such other further orders as this Hon'ble Court may deem fit in the circumstances of the case. Counsel for the Petitioner:MR.A.RAMALINGESWARA RAO Counsel for the Respondent No.: GP FOR REVENUE The Court made the following: ORAL ORDER: Heard Sri A. Rmalingeswara Rao, learned counsel for the petitioner. There is no representation on behalf of the fourth respondent though the name of Sri Nimmagadda Satyanarayana, learned counsel is appearing in the cause list. No counter affidavit has been filed by any of the respondents in this writ petition filed on 28-04-2005. The petitioner seeks invalidation of the order dated 05-03- 2005 of the first respondent. The fourth respondent approached the first respondent by a petition purported to have been filed under the provisions of the Andhra Pradesh Survey and Boundaries Act, 1923 (for short ‘the Act’) and under Board Standing Orders No. (nil). He sought perusal by the first respondent of revenue records including Field Measurement Book (for short ‘the FMB’) relating to R.S.No. 40 of Bandamcherla village in T. Narsapuram mandal; to note down the interpolations made thereon; to order cancellation of the interpolated entries in the FMBs; and to direct the respondents not to interfere with the property covered by R.S.No. 40/3 of the village. He merely impleaded the Mandal Revenue Officer, T. Narsapuram and the Deputy Inspector of Survey, R.D.O’s Office, Eluru as respondents to his petition addressed to the first respondent. According to the facts pleaded by the fourth respondent in his application to the first respondent, he is the owner of an extent of Ac.05-31 cents in R.S.No. 40/3 of the village, a compact block with bunds on all four sides. On the bunds which are twenty five years old, there are certain trees; the extent of Ac.05-31 cents is ‘Registered dry land’ with a standing mango garden about fifteen years of age. To the North of R.S.No. 40/3, there is land in R.S.No. 40/2 in an extent of about Ac.5-00 cents which originally was owned by one Nekkalapudi Muniswamy. On Muniswamy’s death, the property devolved on his legal heirs – Nekkalapudi Sreemannarayana and others. Naidu Pullaiah (the writ petitioner) purchased the said extent of Ac.5-00 from Muniswamy’s heirs – N. Sreemannarayana and others through a registered sale deed in 2000. Pullaiah was having other lands further North of R.S.No. 40/2 by the time of this purchase of the property in R.S.No.39. To the North of the Pullaiah’s land in R.S.No.39, there is a pathway. Since the purchase of Ac.5-00 in R.S.No.40/2, Pullaiah was requesting the fourth respondent to provide him a passage to reach the newly acquired land and his existing land in R.S.No. 39. Pullaiah had in all Ac.20-00 of land in R.S.Nos. 40/2 and 40/3 and wanted to secure a passage from the land in R.S.No. 40/3 to facilitate passage to his own lands and also to take water from his newly purchased land in R.S.No. 40/2. The request of the petitioner was declined by the fourth respondent. In July, 2000, the fourth respondent was served with a notice from respondent Nos. 2 and 3 regarding fixing boundaries of the land covered by R.S.Nos. 40/2 and 40/3. Fourth respondent learnt that Pullaiah was behind this move by the official respondents and that there was tampering with the survey records by certain persons at the behest of Pullaiah. Claiming interpolation as above pleaded, the fourth respondent sought the reliefs already adverted to from the first respondent, by his application. Initially the fourth respondent did not implead Pullaiah in the petition submitted to the first respondent. Thereafter and coming to know of the proceedings the petitioner (Pullaiah) impleaded himself as third respondent in those proceedings. After impleading himself, the writ petitioner filed a counter contesting the claims of the fourth respondent. According to the petitioner there was a pathway in R.S.No. 40/3 in an extent of Ac.0-08 cents and this path way was clearly shown in the F.M.B. after sub-division in 1975. This pathway was used by the original owner – Muniswamy and later on by his legal representatives and after purchase of lands from Muniswamy the petitioner also enjoyed ingress and egress into his property for cattle and carts through that pathway. The first respondent, according to the petitioner, without passing any orders on the petitioner’s application for reopening the case, issued final orders on 05-03-2005 (impugned in this writ petition) and concluded that there was no demarcation of a pathway in the revenue records originally; that the fourth respondent is the absolute owner of land in R.S.No. 40/3; and the petitioners and others have no right to interfere with the land in R.S.No. 40/3. The first respondent’s order refers to a report of the Revenue Divisional Officer, Eluru dated 05-02-2001 and an inspection report by the Deputy Director (Small Savings), West Godavari district, Eluru who is stated to have been appointed as Commissioner by the first respondent to inspect the disputed lands in the presence of both the parties. The reports by the above officers is the basis for conclusion recorded by the first respondent in the impugned order that there was no pathway in R.S.No. 40/3 on which the petitioner could have a right to the detriment of the fourth respondent. The impugned order also records that the fourth respondent had filed W.P.No.18129 of 2003 in the High Court which was disposed of directing the first respondent to dispose of the ‘appeal’ preferred by the fourth respondent within three months from the date of receipt of a copy of that order. Sri A. Ramalingeshwara Rao, learned counsel for the petitioner states that the first respondent has no power, authority or jurisdiction to entertain any application or representation from the fourth respondent recording a declaration existing or otherwise a pathway in R.S.No. 40/3. No such jurisdiction is available under the provisions of the Act or otherwise. In the absence of any power, authority or jurisdiction the first respondent could not have issued an order inter alia having the impact of injuncting the petitioner from using the pathway in R.S.No. 40/3. Learned counsel for the petitioner also contends that neither the report of the Revenue Divisional Officer nor of the Deputy Director (Small Savings) who appears to have been appointed as Commissioner by the first respondent, were furnished to him. According to the petitioner the first respondent followed a strange, unique and unknown procedure and has passed an order without having any power, authority or jurisdiction. None of the respondents have filed a counter affidavit nor is the counsel for fourth respondent present at the hearing this day. In the absence of any rebuttal of the petitioner’s averments and in response to his challenge to the jurisdiction of the first respondent to have entertained the fourth respondent’s application or to have recorded conclusion on facts or as to the power to issue any declaration as to the petitioner’s ineligibility to use the pathway in R.S.No. 40/3, this Court on the application of the ‘principle of non-traverse’ must record the conclusion that the petitioner’s challenge is well-founded. In the circumstances above, the writ petition is allowed. The order of the first respondent bearing reference D.Dis.No. 10218/2000(F1) dated 05-03-2005 is quashed. As despite the lapse of nearly three years, the respondents have not filed a counter affidavit to contest the matter, the writ petition is allowed with costs of Rs.5,000-00 (Rupees Five thousands only) payable by the first respondent to the petitioner within a period of four weeks. The writ petition is allowed as above with costs. ____________________ GODA RAGHURAM, J Dated: 18-04-2008 Pvks/*