M SURYANARAYANA Vs. GRAM PANCHAYAT COMMITTEE

JUDGEMENT

(1.) The petitioners are three in number. The 1st petitioner is the father of petitioner Nos. 2 & 3. They claimed to be members of the undivided Hindu Joint Family and owners of land on which the shops in question were constructed. They pray for a writ of Mandamus declaring the action of the respondent-Gram Panchayat, Bhadrachalam in issuing a notice in Re. No. P2/148/91, dated 21-2-1991 and the further action of the respondent taken pursuant to such notice in breaking open the locks of the three shops held by the petitioners and in taking the entire stock of cloth without mentioning the quantity or quality of the cloth from the shops of the petitioners as illegal and void and for a further direction to the respondent to account for the stocks taken from the shops of the petitioners on 25-2-1991 under cover of the panchanama by restoring the shops and goods.

(2.) The father of the 1st petitioner is said to have purchased land admeasuring Ac. 0-11 cents of land in S.No. 20/65 from the previous owners. Ittitnalla Appaiah and Ittimalla Rajaiah, resedents of Bharachalam under a sale deed dated 4-7-1963. It is stated that out of the said Ac. 0-11 cents, Ac. 0-04 cents of land was utilised for formation of the road leaving Ac. 0.07 cents with them. They also asserted that the name of the 1st petitioner's father was recorded in the revenue account (i.e., 10(1) account) in respect of Ac. 0-11 cents in S.No. 20/65 in Bhadrachalam village and that he was paying the land revenue. He also applied to the Gram Panchayat for permission to construct a building on the said land duly enclosing the plan of the proposed building. The application was allowed sanctioning the plan in the year 1964, It appears, no construction was made but in the year 1968, application for renewal of the permission was made and the same was renewed by the Gram Panchayat. Even then, no construction was made. The petitioners, however, claimed that they continued to be in possession till 1972 by raising the temporary structures thereon. It is alleged that in 1974, the Gram Panchayat, Bhadrachalam constructed three shop rooms in an extent of Ac. 0-03 cents. The petitioners filed an objection petition before the Gram Panchayat on 8-7-1974. They were asked to move the Court for appropriate relief. It is further alleged that the Gram Panchayat assured the petitioners that two shops would be provided to them. On that assurance, they kept quiet. But as the respondent did not honour its commitment, the 1st petitioner took one shop room on lease by participating in the auction conducted by the respondent, with a view to ensure that the possession of the shop is not taken by any third parties. Later, petitioner Nos. 2 & 3 also took two shop rooms in 1984 and 1985 respectively wherein, they were carrying on the cloth business. It is stated that the petitioners are paying rent to the Gram Panchayat. It is further stated that later, the Gram Panchayat got the land in question assigned in its favour. As the title of the petitioners was disputed, the petitioners, on the above facts, filed O.S.No. 291/1984 on the file of the Subordinate Judge, Kothagudem claimingdeclaration of titleand perpetual injunction. Thatsuit was dismissed on 19-7-1990. Aggrieved by the judgment and decree in the said suit, the petitioners filed an appeal, A.S No. 344/91 in the High Court of A.P. which is pending. After the dismissal of the suit, the respondent issued a notice Re. No. P2/148/91 dated 21-2-1991 to the petitioners requiring them to vacate the premises (the shop rooms), within 48 hours with a further averment that in the event of not vacating the shops, suitable action would be taken under the provisions of the A.P. Gram Panchayats Act. While so, on 25-2-1991, the respondent without any authority of law, broke open the locks, made forcible entry into the shops and took away the stocks under the panchanama dated 25-2-1991 and took possession of the shops. It is this action of the respondent, that is assailed in this writ petition.

(3.) The respondent filed a counter affidavit stating, inter alia, that " no statutory legal right " of the petitioners is violated and the writ petition is not maintainable, as the title and possessory rights of the petitioners cannot be decided in writ proceedings. It is stated that the suit filed by the petitioners (O.S.No. 291 of 1984) was dismissed by the learned Subordinate Judge, Kothagudem on 19-7-1990. Afier the dismissal of the suit, the petitioners were asked to vacate the premises orally on a number of times. They removed the entire cloth and other materials from the shops on 21-2-1991 and promised to give possession as per the notice, but failed to do so. Hence, after conducting the panchanama, the possession was taken and the articles available in the shops were mentioned in the panchanama. It is stated that in view of the dismissal of the suit, the petitioners cannot claim any title in the land in question. It is further stated in the counter that the learned Subordinate Judge held in the said judgment that the petitioners were estopped from denying the title of the respondents to the suit property on account of their participation in the auction of the leasehold rights in respect of the shop rooms constructed on the suit site. It is stated that the land in question was assigned by the Government in favour of the respondent on 1-10-1975 and possession was also delivered to the respondent. Thereafter, the respondent constructed the shopping complex on the site. It is added that the petitioners ceased to be tenants trom 1974 onwards and that the petitioners could not get allotment of the suit shops in the auction conducted on 24-2-1984 as they were not the highest bidders. It is denied that without specifying the quantity of the cloth in the patichanama, stocks were taken by the respondent. It is also denied that the respondent acted arbitrarily and without power. In the circumstances, it is prayed that the writ petition may be dismissed.