(Prayer: Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue appropriate Writ, Order or direction more particularly one in nature of WRIT OF MANDAMUS declaring the proceedings of the 4th Respondent dt.22-08-2023, vide Ref.No.D/21/2023, is illegal, arbitrary, ultra-virus, colourful exercise of his authority without following due process of law, issuing notice to the Petitioner and violation of fundamental rights guaranteed under Article 14, 21 and 300-A of Constitution of India and consequently set aside the proceedings of the 4th Respondent dt.22-08-2023, vide Ref.No.D/21/2023 and pass such other order or orders.)

Common Order:

1. Since the issues involved in these two cases are in between the same parties for the very same subject property as such these two writ petitions are heard analogously and are decided by the common order. For the sake of convenience, the facts in W.P. No. 27138 of 2023 are being taken for disposal of these two writ petitions.

2. The prayer in W.P. No.21811 of 2023 is to direct the 4th respondent not to interfere with the peaceful possession and enjoyment of the property and not to dispossess the petitioner from the property to an extent of Ac. 0.46 1/2 cents out of which Ac.0.35 cents situated in Survey No.1497/2 and Ac. 0.11 1/2 cents situated in Survey No. 552 of Utukur Village, Rajampet Mandal, without following due process of law.

3. The writ petition 27138 of 2023 is filed under Article 226 Constitution for the following relief:

                  ……to issue appropriate Writ, Order or direction more particularly one in nature of WRIT OF MANDAMUS declaring the proceedings of the 4th Respondent dt.22.08.2023, vide Ref.No.D/21/2023, is illegal, arbitrary, ultra-virus, colourful exercise of his authority without following due process of law, issuing notice to the Petitioner and violation of fundamental rights guaranteed under Article 14, 21 & 300-A of Constitution of India and consequently set aside the proceedings of the 4th Respondent dt.22.08.2023, vide Ref.No.D/21/2023 and pass such other order/orders…...

4. The 4th respondent-Tahsildar through impugned proceeding dated 22.08.2023 in Ref D/21/2023, has delivered the following order:

                  “As per the easement rights one should not object the farmers to use the age old Rastha irrespective of ownership of land as there is no alternate way to the farmers to go to their lands for cultivation. Hence, a rashta in an extent of 0.08 cents in Sy. No.1497/1 and 0.0550 cents in Sy. No.1497/2 of Utukur Village is here by farmed to facilitate the agriculturists, including the present applicant to reach their fields and also to take the man use and other agricultural implements, since it has been notice by the undersigned during the field inspection on 01.08.2023 that there is no any Rashta other than this proposed Rashta to the ryots to reach the fields without any inconvenience, and the Mandal Surveyor, Mandal Revenue Inspector and Village Revenue Officer concerned directed to show the passage in the subject lands within 7 days from the date of receipt of this order.”

5. The said proceedings dated 22.08.2023 is under challenge before this Court on the ground that the land covered by 0.08 cents in Sy. No.1497/1 and 0.0550 cents in Sy. No. 1497/2 of Utukur Village is private land, and the petitioner is exclusively using the said rasta (pathway) to reach his properties and the right of easement has to be adjudicated in a Civil Court and the 4th respondent-Tahsildar is not the authority to declare the easementary rights and the 5th respondent is the man behind issuance of the order impugned in this writ petition. Hence, prayed to set aside the order dated 22.08.2023 in Ref D/21/2023.

6. Learned counsel for the petitioner argues that on an application filed by the writ petitioner, the District Collector-cum-Magistrate has deleted the land from the prohibited list under section 22A of the Registration Act vide proceeding in R.Dis. No. E3/283/2023 dated 17.02.2023, on the recommendation of the 4th Respondent-Tahsildar dated 21.10.2022 through proper channel. When the respondents were trying to dispossess the writ petitioner from the subject lands of the writ petition, the petitioner herein filed W.P. No. 21811 of 2023, and this Court ordered the respondents to maintain status quo and since then the petitioner has been in the possession of the land, and hence urged this Court to set aside the impugned order.

7. Learned counsel for the 5th unofficial respondent would submit that the land in question is gayyalu land and doesn’t belong to the writ petitioner and he refers to the documents filed to support his claim that the land in question is gayyalu. And further stated that the 5th respondent filed W.P. No.11634 of 2019 before this Court and the said writ petition was disposed of vide order dated 08.12.2022 and the Court directed the official respondents to take steps as per law by giving notices to the encroachers.

8. The argument presented by the 5th respondent is not valid, as the District Collector-cum-District Magistrate has determined that the land belongs to the writ petitioner and has removed it from the prohibited list under Section 22A of the Registration Act, in a proceeding dated 17.02.2023.

9. Heard Sri A. Syamsundar Reddy, learned counsel for petitioner and the learned government pleader for official respondents and Sri K. Venugopal Reddy, for the respondent No.5.

10. POINT FOR CONSIDERATION:

                  The 4th respondent–Tahsildar, through the impugned proceedings, permitted the 5th respondent and other villagers/farmers to use the land in question for agricultural purposes, irrespective of ownership, on the ground that there is no alternative pathway for the farmers to access their lands for cultivation. The contention of the learned counsel for the petitioner is that the rasta (pathway) belongs to the petitioner and is in his exclusive use, and that the Tahsildar has no jurisdiction to declare an easementary right, as such relief can be granted only by a Civil Court. It is further submitted that the 5th respondent, by using his influence, is attempting to lay a road in the subject land for real-estate purposes.

11. However, on perusal of the affidavit filed in support of the writ petition, there is no assertion that the 5th respondent is influencing the authorities to lay a road in the subject land. It is a settled principle of law that, in the absence of a specific pleading or assertion in the affidavit, an oral argument cannot be taken into consideration.

12. The claim of the government is that there is a rasta in the land being used by the other ryots of the village and they are entitled to protect their rights of easement.

13. The land has been used by the villagers for agricultural purposes and other human needs. The villagers have been using the land for farming and other daily agricultural needs for a long time. Because of this long-standing use, it should be enjoyed jointly by the villagers, irrespective of the petitioner’s proprietary interests in the land, as their rights have been established by long-standing usage and custom, which are firmly established and difficult to change (entrenched) now in the ground realities of village life. After conducting an enquiry, the Tahsildar held that the land is being used by the villagers for agricultural purposes since long time and did not declare any easementary rights over the property.

14. On the attending circumstances of the case, this Court not seen any illegality or irregularity in the impugned order of the Tahsildar. The Court directs that the villagers be permitted to use the rasta (pathway) for agricultural purposes. The present Writ Petition is disposed of with instructions to the respondents not to construct any road on the petitioner’s land or alter its nature. If the land is needed for public purposes, the official respondents must adhere to the proper procedures for land acquisition and may not use the subject land for any purposes other than agriculture.

15. Accordingly, these two writ petitions stand disposed of. However, no order as to costs.

                  As a sequel, interlocutory applications, if any pending in this Writ Petition shall stand closed.