IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.11782 of 2009 Between: K. Ramachandra Rao ..... PETITIONER AND The State of Andhra Pradesh, Rep. By its Secretary, Panchayat Raj and Rural Development (PTS IV) Department, Secretariat, Hyderabad and three others .....RESPONDENTS *THE HON'BLE SRI JUSTICE P.S. NARAYANA +WRIT PETITION No.11782 of 2009 % 14-9-2009 # K. Ramachandra Rao ..... PETITIONER AND $ The State of Andhra Pradesh, Rep. By its Secretary, Panchayat Raj and Rural Development (PTS IV) Department, Secretariat, Hyderabad and three others .....RESPONDENTS <GIST: >HEAD NOTE: ! Counsel for petitioner : Ms.P.S. Bhramaramba Devi ^ Counsel for respondents 1 to 3 : A.G.P. for Panchayat Raj Counsel for respondent No.4 : Sri Badana Bhaskara Rao ? CASES REFERRED: 1. AIR 1960 A.P. 593 (DB) 2. AIR 1958 A.P. 458 (DB) 3. AIR 1958 S.C. 86 4. AIR 1955 Bombay 220 5. AIR 1977 Delhi 105 6. AIR 1974 S.C. 1126 7. 2002(3) A.L.D. 163 8. 2002(5) ALD 98 THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.11782 of 2009 ORDER: 1. This court issued Rule nisi on 17-06-2009. 2. Counter affidavits had been filed. 3. Though the matter is coming under the caption “Interlocutory”, at the request of the counsel on record the Writ Petition itself is being disposed of finally. 4. The writ petitioner, K. Ramachandra Rao, filed the present writ petition for a writ of Mandamus or any other appropriate Writ declaring the impugned action of the respondents, particularly the 1st respondent in passing orders in Revision Petition filed by the petitioner, through Memo No.29099/Pts.IV/A2/08-5, dt.22-05-2009, without assigning any reasons and thereby dismissing the Revision Petition filed by the petitioner without following the due process of law as illegal, arbitrary and violative of principles of natural justice and consequently set aside the impugned Memo No.29099/Pts.IV/A2/08-5, dt.22-05-2009 and pass such other suitable orders. 5. Ms.P.S. Bhramaramba Devi, 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 and would maintain that in the facts and circumstances of the case the impugned order cannot be sustained. The learned counsel also had taken this court though the different proceedings, the grounds of revision, the order issued by the Secretary, Gram Panchayat and also the order made by the District Panchayat Officer and the representation made by the petitioner before the District Panchayath Officer, permission No.22/2008 issued by the Gram Panchayat, objection raised by the petitioner before the District Panchayat Officer, Mahaboobnagar District, the representation made by the petitioner before the Gram Panchayat for construction of compound wall along with translated version, pattedar pass book, certified copies of the minutes book, the true copy of Revision Register of House Tax issued by the Gram Panchayat. The learned counsel also would maintain that the very entertainment of the appeal though the second respondent is not the appellate authority, would go to show that for certain extraneous reasons the second respondent had entertained the said appeal and made the said order. The learned counsel also would comment that the matter was carried by way of Revision before the revisional authority – the first respondent, wherein the specific ground of the inherent lack of jurisdiction on the part of the second respondent to entertain the appeal had been raised, but for the reasons best known without adverting to all the aspects the said revision also was dismissed. Aggrieved by the same the present writ petition had been filed. The learned counsel also placed strong reliance on certain decisions. Incidentally The learned Counsel also pointed out to several other factual controversies, which are not well related to the present writ petition. 6. The learned Assistant Government Pleader for Panchayat Raj had taken this court through the counter affidavit filed by the second respondent and would maintain that it is no doubt true that under certain specified circumstances the second respondent can entertain a second appeal. But however, in the present case the second respondent had only given certain directions as competent authority and hence the order under challenge in the revision and also the revisional order made by the first respondent cannot be found fault. The learned AGP for Panchayat Raj also referred to the relevant material papers, the letter dated 04-08-2009 and the appeal petition filed by the 4th respondent along with the documents, the proceedings of DPO, Mahabubnagar, dated 25-11-2008 in Proc.No.A3/986/2008 and the Government Memo No.29099/Pts.IV/A2/2008-5, Dt:22-05-2009. 7. Sri Venugopal the learned counsel representing Sri Badana Bhaskar Rao would maintain that inasmuch as the second respondent and first respondent as quasi judicial authorities made these orders, a writ of certiorari alone would lie and a writ of mandamus would not lie and hence the writ of mandamus is a misconceived remedy. The learned counsel while further elaborating the submissions would maintain that it is no doubt true that unless the statute provides the remedy by way of an appeal, an appeal cannot be maintained. But, however in the light of the nature of the order which was made by the second respondent since certain directions had been given in pursuance thereof the 4th respondent already had completed the constructions. This aspect also may have to be taken note of. The learned counsel also further had drawn the attention of this court to relevant definitions and the relevant Rules under Andhra Pradesh Gram Panchayat Land Development (Layout and Buildings) Rules, 2002 (hereinafter for short referred to ‘the Rules’ for the purpose of convenience) and would maintain that the competent authority to consider this aspect is the Executive Authority and Executive Authority is defined under Rule 2 (18) of the Rules. The learned counsel also would maintain that inasmuch as in pursuance of the orders made by the second respondent and the first respondent construction had been completed especially when appropriate relief had not been prayed for since a writ of mandamus had been thought of by the writ petitioner, it is not a fit matter to be interfered with under Article 226 of Constitution of India and hence the Writ Petition to be dismissed. The learned counsel also relied on certain decisions. The learned counsel also had referred to the material papers placed before this court - copy of sale deed, dated 22-04-2004, copy of certificate issued by Village Secretary, dated 20-04-2004, copy of registered sale deeds, dated 12-05-2008, copy of certificate issued by the Secretary, dated 14-07-2009, copy of refusal order passed by the Gram panchayat, dated 04-08-2008, copy of order of the Panchayat Secretary, dated 16-12-2008 and copy of complaint given by the 4th respondent dated 30-06-2008 8. Heard the counsel and perused the respective stands taken by the parties and also the material papers placed before this Court. 9. The relief prayed for in the writ petition already had been specified supra. The relevant portion of the order under challenge, dated 22-05-2009 reads as hereunder: “Government after careful examination of report of District Panchayat Officer, and Revision Petition of Sri K. Rama Chandra Rao, S/o.Late K.Srinivas Rao, R/o.Kondareddypally village, Balmoor Mandal, Mahaboobnagar District, it is observed that there is no illegality, irregularity or impropriety in passing the order by the District Panchayat Officer. Since it is a civil dispute let both the parties seek their redress in an appropriate civil court. The R.P. is disposed off accordingly. The Collector, Mahaboobnagar District is therefore, requested to take necessary action in the matter immediately.” 10. It may not be out of context if it is stated that Section 248 (2) of A.P. Panchayat Raj Act, 1994 hereinafter for short referred as ‘the Act’ for the purpose of convenience had been referred to in the impugned order dated 22-05-2009 and further the contention that the order made by the District Panchayat Raj officer is without jurisdiction also had been referred to. But, however for the reasons best known without deciding the crucial question which had been raised before the first respondent, the first respondent thought of disposing the Revision Petition with certain directions. 11. Be that as it may, the case of the petitioner is that the petitioner is the owner of the property in Sy.No.409 of Kondareddypally village, Balamur village, Mahabubnagar district bearing door Nos.1-175, 1-176 and 1-177 and he applied for construction permission for compound wall. He was in peaceful possession of land in the house and the petitioner made an application to the third respondent seeking permission to construct the said compound wall. 12. It is also the specific case of the writ petitioner that the Gram Panchayat issued necessary permission, dated 25-04-2008 and at this juncture the 4th respondent tried to interfere with the construction activity of the petitioner without any right, title or interest over the property and when his authority to objection had been questioned, the 4th respondent failed to produce any document to substantiate his claim. 13. It is also the case of the writ petitioner that behind the back of the writ petitioner it appears the 4th respondent approached the third respondent praying for permission to construct house in the very same property claiming to be the owner. The 3rd respondent rejected the said application by order dated 04-08-2008. It is pertinent to mention that even today the proceedings of the 3rd respondent, dated 25-04-2008 issued in favour of the petitioner is in force and the same is valid. However, aggrieved by the rejection on the request made by the 4th respondent he carried the matter before the 2nd respondent. The second respondent on a totally erroneous view and without considering objections filed by the petitioner while setting aside the said order allowed the appeal. Aggrieved by the said proceedings A3/986/2008 dated 25-11-2008 the petitioner preferred Revision before the first respondent. The grounds of the Revision Petition also had been placed before this court and the specific ground raised in relation to the incumbency of second respondent to entertain the appeal also had been specifically pointed out. 14. The second respondent in proceedings No.A3/986/2008 dated 25-11-2008 observed as hereunder: “During my personal visit on 10-10-2008 to Kondareddypally at the site, my enquiries revealed that the houses purchased by Sri.D. Achutha Reddy were demolished by him for construction of a new house and that the houses and sites sold were owned by the vendors since their ancestors time. Even in the voters lit of the village the names of the vendors along with house nos are depicted. Hence, I find that there are no merits in the claim of the 2nd respondent that the site belongs to him. In the result, I hold that the impugned order dated 04-08-2008 of the Gram Panchayat, the 1st respondent herein, is liable to be set aside. I, accordingly set aside the same and direct the Gram panchayat to accord permission for construction of house as per the plan submitted by the appellant Sri.D.Achutha Reddy as per the existing rules and regulations vide G.O.Ms.No.67, PR&RD Dept., dated 22-02-2002. The Gram Panchayat is directed to accord permission and repot compliance within a week.” 15. It is also stated that in the impugned order the 4th reference indicates that a Telegram dated 20-3—2009 was issued and that the Advocates had represented their respective stands. The same is factually incorrect. 16. Further it is stated that the matter got adjourned to further hearing and also for clarification from the parties. The proceedings of the second respondent dated 04-02-2009 addressed to the petitioner and also to the other respondents showing the hearing to be held on 10-02-2008 before the first respondent also had been placed before this court. Thus, these aspects would go to show that the first respondent had not applied the mind and made an illegal and an arbitrary order. Further specific stand had been taken that the provisions of Section 248 (2) of the Act had been referred to in the order under challenge and the said provisions are not applicable to the facts of the case at all. 17. In the counter affidavit filed by the second respondent it is stated that the 4th respondent filed an appeal dated 30-08- 2008 before the 2nd respondent aggrieved by the letter dated 04- 08-2008 of the Gram panchayat, Kondareddypally village, wherein the Gram Panchayat rejected his application dated 20-05-2008 for construction of the house. The matter was posted for hearing from time to time by issuing notices to all the parties concerned as well as Sarpanch and Sri.D.Achutha Reddy, the 4th respondent. The 2nd respondent visited the village after giving notices to all the concerned and inspected the site of the proposed construction by the petitioner and also perused the records of the Panchayat. 18. It is also averred that the 4th respondent by his letter dated 09-05-2008 complained that the writ petitioner and his wife Smt.Bhramarambha tried to grab his property which was purchased from Purru Jangaiah and four others about five years back by a registered document vide DOC.No.1218 to 1222, dated 12-05-2008 consisting of houses and other sites on 08-05-2008 and 23-05-2008 and they stated they were attacked by the petitioner’s men when they prevented the grabbing of land. It is also stated that the 4th respondent and the petitioner filed criminal complaints against each other before the Police. It is stated that the petitioner submitted plans to the Secretary, Gram Panchayat on 20-05-2008 for construction of new house in the above purchased house after demolishing the old houses. 19. Further it is stated that the vendors were enjoying the property sold for more than 120 years since their ancestors time. But, however, Smt.Hema, the Sarpanch of Kondareddypally colluded with the petitioner and interpolated a resolution in the minutes book of the Gram Panchayat with an old date as if permission was granted to the petitioner for construction in the land of the 4th respondent. Further it is averred that the Sarpanch is creating the record with old date and that the application is still pending with the Panchayat. It is also stated that the Sarpanch may tamper the Panchayat records so as to help the Petitioner and his wife in their illegal activities. Hence, the 4th respondent requested to cause enquiry into the matter and seize the records and also submitted copies of sale deeds, plan and police complaint lodged by him. 20. It is also stated that a report was called for in the matter of memo dated 18-06-2008 from the Gram Panchayat along with the records and the relevant file of the 4th respondent. Further it is averred that the application of the 4th respondent is under consideration and necessary action will be taken as per the Panchayat resolution after issuing the notice as per law. It is also informed that as per the documents, the property was purchased by the 4th respondent on 12-05-2008 and not five years back. Further it is stated that the 4th respondent by his letter dated 30-06-2008, complained that the Sarpanch and her husband took photographs of his site at 9.30 AM on that day in a high handed and unduly manner despite objections from his people. 21. It is also stated that on receipt of the letter dated 04-08-2008 of the Gram Panchayat, the application of the 4th respondent dated 20-05-2008 was rejected on the following grounds: 1. It is submitted that as per the records of the Gram Panchayat, the vendors Buram Bodayya and others were owning 94 Sq. yards of site, but as per the registered documents, the area was 1825 Sq. yards and the vendor cannot passion the title which they do not have. 2. It is submitted that the Petitioner by his objection letter dated 04-07-2008, stated that the site in which the 4th Respondent proposed construction, belongs to him and is forming part of site appurtenant to his house and that he constructed a portion of the compound wall as per the Gram Panchayat dated 05-03-2008. 22. Further it is averred in the counter affidavit of respondent No.2 that under the above circumstances and after considering all the points, the order dated 04-08-2008 of the Gram Panchayat is set-aside by second respondent and directed the Gram Panchayat to accord permission for construction of house as per the plan submitted by the 4th Respondent as per the existing rules and regulations vide G.O.Ms.No.67, Panchayat Raj & Rural Development, dated 26-02-2002. The Gram Panchayat is directed to accord permission and report compliance within a week. In view of the above, orders were issued vide Proc.No.A3/986/2008, dated 25-11-2008. The operative portion of the said order already had been referred to above. 23. It is also stated that the second respondent entertained appeal against the orders of the Executive Officer as the same is turned on a resolution of Gram Panchayat dated 02-08-2008 and passed orders under Section 128 of the Act. The order passed by the 2nd respondent is based on the documentary evidence submitted by the 4th respondent during the course of pendency of the Appeal. Aggrieved by the said order made by the second respondent the petitioner filed revision and the 1st respondent dismissed the revision by order dated 22-05-2009 vide Memo No.29099/Pts.IV/A2/08 and directed both the petitioner and the 4th respondent to approach appropriate Civil Court as the matter relates to the dispute between the parties with regard to title. Hence, the dismissal of the writ petition had been prayed for. The relevant material papers places before this court along with the counter affidavit by the learned AGP for Panchayat Raj already had been referred to above. 24. In the counter affidavit filed by the 4th respondent almost similar averments had been made. Specific stand had been taken that the order was made by the first respondent in accordance with law. It is averred in para 3 of the counter affidavit of respondent No.4 that it is true that the petitioner is the owner of the property of door Nos.1-175, 1-176 and 1-177 situated at Kondareddypally Village, Balmoor Mandal, Mahboobnagar District, but they are not situated in Survey Number 409 and they are situated in Grama Kantam. The Grama Kantam has no separate Survey Number and it is evident from the certificate dated 14-07- 2009 issued by the Panchayat Secretary, Kondareddypally Village. It is not correct to state that the petitioner made application to the 3rd respondent seeking permission to construct the compound wall nor the Gram Panchayat issued permission on 25-04-2008. The petitioner had not produced any documentary evidence before the 2nd respondent and it is clearly mentioned in the order of the 2nd respondent dated 25-11-2008 in proceedings No.A3/986/2008. It is further stated that even as per the minutes book of Gram panchayat there is no resolution permitting the petitioner to construct the compound wall which is evident from the order of the 2nd respondent and the same was brought on record subsequently with the help of Sarpanch. The permission said to have been granted by the Gram Panchayat on 25-04-2008 is, it seems, created for the purpose of filing of this present writ petition duly hand in-glove with the Srpanch, who has no authority to issue permission to construct compound wall as per Rule 2 (18) of the Andhra Pradesh Gram Panchayat Land Development (Layout and Building) Rules 2002 issued under G.O.Ms.No.67 PR & RD (PTS- IV), dated 26-02-2002. As such it is evident that the petitioner is trying to misguide this court with false averments with a view to obtain interim orders of this court. It is not correct to state that the 4th respondent tried to interfere with the construction activity of the petitioner without any right, title or interest over the property. It is also not correct to state that 4th respondent failed to produce any document to substantiate his claim. In fact the 4th respondent purchased an extent of 1825 Square Yards from Purru jangayya and 4 others under a sada sale deeds dated 22-04-2004. The vendor of the 4th respondent had handed over the possession of the said property on the same day. Before purchasing the said property, the Secretary, Kondareddypally Gram Panchayat issued a certificate on 20-04-2004 confirming that vendors of the 4th respondent are having houses in Gram Panchayat, Kondareddypally Village and they are situated within the Grama Kantam of the said village. Subsequently to avoid legal complications the above houses sites were got registered in his name vide registered sale deed Nos.1218 to 1222 dated 12-05- 2008 consisting of houses and appurtenant sites. It is also further stated that it is not out of place to mention that the vendors of the 4th respondent enjoyed the property which was sold to him for more than 120 years since their ancestors time. It is further stated that the petitioner and his wife Smt.Bramaramba, even prior to this episode, failed to occupy his site by using force and he made complaints to the Police and the District Panchayat Office and criminal cases were filed against the petitioner and his wife Smt.Bramaramba and they are pending. 25. It is also averred that on 20-05-2008 the 4th respondent filed an application before the 3rd respondent and plans to the Gram Panchayat for construction of new house in the above purchased property and the same was rejected by the Gram Panchayat by letter dated 04-08-2008 on the ground that his vendors are owning 94 Square Yards of site but not the area of 1825 Square Yards and that there is an objection letter dated 04- 07-2008 by the petitioner herein stating that the proposed construction site in Survey Number 409 is forming part of site appurtenant to his house. It is also further stated that it is pertinent to state that the extent of 94 Square Yards referred to in the order dated 04-08-2008 is only the huts constructed by the vendors of the 4th respondent and the extents of vacant sites are not considered and the entire area is not reflected in the records of the Gram Panchayat. 26. It is also averred that there is no procedure or practice to record the open site in the property register of the Gram Panchayat and the authorities recorded only the constructed area and allot door number for the purpose of house taxes. The entire site purchased by the 4th respondent is the houses and vacant sites of his vendors totally comes to about 1890 Square Yards. As such, the Gram Panchayat is not correct in refusing his application vide letter dated 04-08-2008. 27. It is also stated that with regard to the other ground to refuse permission, the 4th respondent stated that the petitioner has nothing to do with the land which belongs to him and he is the absolute owner of the property by purchasing the same under registered sale deeds and the land is in Grama Kantam but not in Survey Number 409. The sale deeds produced before the lower authority with annexed maps clearly shows that the 4th respondent purchased the sites along with houses. The property purchased by him is forming part of Grama Kantam as per certificates dated 20-04-2004 of the Village Secretary. If the site in dispute is part and parcel of Survey Number 409 it cannot form part of Grama Kantam since the Grama Kantam has no separate Survey Number as per the certificate issued by the Panchayat Secretary dated 14-07-2009. Further it is stated that no documentary evidence is produced by the petitioner showing that the land belonged to him except filing his objection letter dated 04-07-2008 and it cannot be construed as gospel truth. It is also further stated that with a view to grab his property the petitioner is filing factious petitions/objections without there being any title over the property. He approached the 3rd respondent seeking permission to construct house in the property belonged to him. He submitted that the proceedings