IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 5341 of 2005 Between: 1 Yerravarapu suryanarayana s/o. late Appanna, Mangaliveedhi, Vadlapudi, R.H.Colony, Gajuwaka Mandal, Visakhapatnam District. 2 Yerravarapu Tatababu s/o. late Appanna, Mangaliveedhi, Vadlapudi, R.H.Colony, Gajuwaka Mandal, Visakhapatnam District. ..... PETITIONER(S) AND 1 The District Collector, Visakhapatnam District, Collectorate, Maharanipet, Visakhapatnam. 2 The Revenue Divisional Officer-cum-Special Officer, Land Acquisition, Steel Plant, District Collectorate Premises, Visakhapatnam. 3 Aripaka Eswaramma W/o. late Viswanadham, Kagitalavari Veedhi, Near Venkateswaraswami Temple, Peda Waltair, Visakhapatnam District. 4 Kanithi Govindaraju S/o. Appa Rao (Ex Serviceman) Mangaliveethi, Kanithi Colony, Vadlapudi Post, Visakhapatnam District. .....RESPONDENT(S) 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 May be pleased to issue an appropriate writ order or direction more particularly one in the nature of Writ of Mandamus decalring the action of the 2nd respondent in issuing the proceedings D.D.is No.165/04 R.I. Dt.20-11-04 and thereby alloting the same plots which were allotted to the petitioners vide proceeding R.C.No.1064/87/S.O./R.I dated 28-8-92 as arbitrary, illegal and against the principles of natural justice apart from being violative of Articles 14,21 and constitutional guarantee guaranteed under Article 300(A) of Constitution of India and issue the consequential direction not to give effect to D.Dis.No.165/04 R.I. dtaed 20-11-04 and pass such other order or orders. Counsel for the Petitioner:MR.SIVALENKA RAMACHANDRA PRASAD Counsel for the Respondent No.: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 5341 of 2005 03-03-2009 Oral Order: The order of the 2nd respondent dated 20-11-2004 allotting plot Nos. 1672 and 1673 in Sector-II of Vadlapudi R.H. Colony, Gajuwaka Mandal, Visakhapatnam District in favour of respondent Nos. 3 and 4 respectively, is challenged in this writ petition as being inconsistent with the earlier proceedings bearing R.C.No. 1064/87/S.O./R.1 dated 28-08-1992 and arbitrary. The petitioners claim to have been allotted the plots by an order of allotment passed by the 2nd respondent on 28-08-1992 pursuant to their mother having been granted a Rehabilitation, ‘R’ Card. It would appear that under a scheme plots were allotted to displaced persons whose lands and houses were acquired for establishing the Steel Plant, on the basis of ‘R’ Cards issued by the Vishakapatnam Steel Plant. The petitioners assert to have been assigned plot Nos. 1672 and 1673 under an order of the 2nd respondent dated 28-08-1992. The present complaint is that respondent Nos. 3 and 4 have been assigned the same plots by the impugned order without notice and opportunity to them and without cancelling the order of allotment made earlier in their favour in 1992 by the 2nd respondent. In the affidavit filed in support of the writ petition, it is asserted at paragraph No. 3 that earlier when officials of the 2nd respondent, at the instance of the husband of the 3rd respondent, tired to interfere with the petitioners’ possession and tried to evict them without any right or authority, the petitioners filed O.S.No. 1921 of 1998 on the file of the learned Principal Junior Civil Judge, Visakhapatnam for injunctive relief. Initially temporary injunction was granted on 03-08-1998 in I.A.No. 727 of 1998. On transfer to the Court of the learned Junior Civil Judge, Gajuwaka, the suit was re-numbered as O.S.No. 187 of 1999. The suit was however dismissed by the judgment and decree dated 16-09-2003. Aggrieved by the judgment and decree aforesaid, the petitioners preferred A.S.No. 1 of 2004 which is pending before the Court of the learned Senior Civil Judge, Gajuwaka. The petitioners however did not plead or contend in oral arguments that an ad-interim injunction, stay o r status-quo was granted in the appeal – A.S.No. 1 of 2004. The petitioners, notwithstanding the finding in O.S.No. 187 of 1999 that they were not in possession of the plots in question as on the date of the institution of the suit, contend in this writ petition that they continue to be in possession and when they were sought to be dispossessed, they represented on 03-01-2005 about the illegal conduct of the 2nd respondent and had also lodged a police complaint. This is the narrative of the petitioners as regards their possession and title to the property. In substance, the petitioners assert that since the earlier assignment in their favour in 1992 had not been formally or otherwise cancelled, no fresh assignment of these plots could made in favour of respondent Nos. 2 and 3, by the impugned order dated 20-11-2004. The 2nd respondent has filed a counter affidavit. It is specifically contended by this respondent that the petitioners are not residents of Kanithi village, their houses were not acquired and they are not entitled for the benefits of rehabilitation. It is stated that the petitioners had encroached two house site plots i.e., 1672 and 1673 and had erected thatched houses. These houses were removed and possession taken on 25-06-1998. The petitioners by producing ‘fake proceedings’ of orders of allotment of plot Nos. 1672 and 1673 by the then Additional Commissioner of Industries & Special Officer, Land Acquisition, Steel Plant, Visakhapatnam dated 28-08-1992 are claiming to have been allotted these plots, is the contention of the 2nd respondent. The allegation that the petitioners were never allotted these plots and the orders of allotment produced by them are fake orders, not issued by the 2nd respondent, is a theme reiterated in paragraph No.6 also. The pleadings in paragraph Nos. 3 and 6 of the 2nd respondent do not clarify nor does the learned Government Pleader for Land Acquisition able to enlighten this Court as to what the respondents intend by stating that these are “fake” and “fabricated” documents. It is not clear whether the order of assignment dated 28-08-1992 is an order by an individual who was not the Special Officer, Land Acquisition, Steel Plant, Vishakapatnam or whether the document of assignment is manufactured by the petitioners themselves or by somebody else for their benefit or even whether the Special Officer, Land Acquisition, Steel Plant did pass the order of assignment but without the petitioners’ having entitlement for grant of such plots. But such ambiguities are the entrenched leitmotif of Government pleadings. Be that as it may. The petitioners have preferred an appeal – A.S.No. 1 of 2004. This is stated to be pending before the Court of Senior Civil Judge, Gajuwaka for injunctive relief against what is characterized as unlawful dispossession. In that appeal, it is open to the petitioners to seek restoration of possession and plead entitlement to the property and the legitimacy of earlier possession on the basis of the order of assignment dated 28-08-1992. The appellate Court in A.S.No. 01 of 2004 of the learned Senior Civil Judge, Gajuwaka, if presented such a claim by the petitioners, would consider the same in accordance with law. In the context of the fact that the petitioners claim to title to the property is incidentally in issue in A.S.No. 1 of 2004, this Court is not inclined to pronounce whether there was a valid and operational order of assignment dated 28- 08-1992 in their favour, particularly in the context of the clearly asserted position on behalf of the respondents, in particular the 2nd respondent that there is no such order of assignment (however ambiguously such defence is asserted). Mr. S. Ramachandra Prasad, learned counsel for the petitioners would alternatively plead that this Court at least interdict the order of assignment now made in favour of respondent Nos. 2 and 3 so as to enable the petitioners to establish their right to possession in A.S.No. 1 of 2004. Since the 2nd respondent seriously contests the existence of a valid order of assignment in favour of the petitioners and that dispute is a factual dispute, this Court is not inclined to adjudicate the same in proceedings under Article 226 of the Constitution of India. This Court finds no basis for even a prima facie conclusion that the impugned order of assignment dated 20-11-2004 is incompetent for being inconsistent with the earlier order of assignment dated 28- 08-1992. In these circumstances, this Court is not inclined to grant even the alternative relief sought by the petitioners. On the aforesaid analysis, the writ petition must fail and is accordingly dismissed. The petitioners are however at liberty to pursue appropriate alternative remedies including, if so advised, in A.S.No. 01 of 2004 on the file of the learned Senior Civil Judge, Gajuwaka or any other proceeding, as advised. It is clarified that the observations made herein are confined to the context of this case and shall not be constructed as the pronouncement by this Court either on the assertions on behalf of the petitioners or the contra claims on behalf of the respondents. The appropriate forum considering the disputes between the parties shall consider such disputes on the basis of the record before it. The writ petition is dismissed as above. There shall however be no order as to costs. ____________________ GODA RAGHURAM, J Dated: 03-03-2009 Pvks