Andhra HC (Pre-Telangana)
V. Santha Kumari And Ors. vs The District Revenue ... on 6 February, 2003
Equivalent citations: 2002(2)ALD330, 2003(2)ALT361
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
ORDER Ramesh Madhav Bapat, J.
1. This writ petition is filed by one V. Shantha Kumari and 9 others. The writ affidavit was sworn in by one Ch. Muralikrishna, S/o late Ch. Ramanadham. In this writ petition the proceedings of the first respondent in No. D5/3467/72 dt.17-8-1996 is assailed on the ground of illegality, arbitrary and without jurisdiction.
2. The averments made in the writ affidavit are briefly narrated as follows: It is stated by the petitioners that they are the owners of plot Nos.1, 3, 5, 8, 17, 18, 27, 29, 30, 53 and 54 situated at part of survey number 49/7, Gajularamaram village, Qutubullapur Mandal, Ranga Reddy District. The petitioners purchased individual plots on various dates from 1968 to 1993 under various sale deeds and acquired title. The details of which have been shown in Annexure-I. It is further stated by the petitioners that an extent of five acres in Sy. No. 49 was allotted in favour of one Smt. Sharada Bai by the Tahsildar, Medchal in his proceedings No. A3/9765/1960 dt.21-3-1961. The said permission was granted by the Tahsildar under the Laoni Rules subject to condition that after Podhi work is completed and after assessments are fixed by the department on survey and settlement, the said allottee shall pay the assessment so fixed. However, the grant was subject to cancellation only if the allotment made is by mistake of fact or owing to misrepresentation of fact. While allotting the said land, it was also stipulated that the land granted is not transferable, the said grantee shall not transfer without previous sanction obtained from the Tahsildar.
It is further stated by the petitioners that Smt. Sharada Bai wanted to sell the land after allotment and therefore on 30-10-1967 she sought the permission of the Tahsildar under sections 47 and 48 of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short "the said Act") and accordingly permission was granted to her to sell the property in favour of Bhagavanth Rao Mashalkar. On 18-12-1967 Sharada Bai sold the property to Mashalkar under the registered sale deed. On 16-2-1979 mutation in the revenue records was done in the name of Mashalkar. On 11-9-1979 gram panchayat granted lay out in favour of Mashalkar, in between 1979 - 1982. Mashalkar divided the property into different plots and he sold different plots in favour of the petitioners and others. On 23-10-1979 Smt. V. Shantha Kumari purchased Plot NO. 18 under registered sale deed from Mashalkar. On 13-12-1980 Smt. V. Shantha Kumari obtained building permission from the gram panchayat. The 2nd petitioner in the contempt case namely Devaki purchased plot numbers 29 and 30 vide document No. 1009/81. On 19-8-1991 a decree for permanent injunction was granted in favour of Shantha Kumari in O.S. No. 31 of 1988 by the District Munsif, Medchal against the Government represented by the Collector, and Mandal Revenue Officer, Qutubullahpur restraining them from interfering with her possession. Smt. Shantha Kumari was constrained to file the above suit as the Collector and the M.R.O., threatened her to resume the land. Similarly different petitioners herein filed such suits and the suits were decreed accordingly. In spite of this position and even after obtaining the decree against the Collector and the M.R.O, the Collector issued proceedings dated 17-8-1996 to resume the entire land and therefore they were constrained to file the present writ petition.
3. On filing of the writ petition, notices were issued to the respondents. Respondents filed their counter. In the counter it is mainly contended that the sale made by Sharada Bai in favour of Bhagavanth Rao Mashalkar itself is illegal and therefore the Government gets a right to resume the land. Though the suit is decreed in favour of different petitioners it has no legal force. The Government is entitled to resume the land as per the terms and conditions of the assignment.
It is further contended in the counter affidavit that the writ petitioners purchased the assigned land for non-agricultural purposes from the assignee, who violated the terms and conditions of assignment. As such the assignment was cancelled after following due procedure by the District Revenue Officer in file No. D5/3467/72 dt.17-8-1996. It is further stated by the respondents that the Tahsildar had no jurisdiction to issue permission in case of assigned lands and the permission said to have been granted under sections 47 and 48 of the said Act is not applicable in this case and therefore the entire transaction done by the petitioners in purchasing the land is totally illegal. It is further stated by the respondents that the petitioners never in possession of the land. The land was resumed on 6-11-1996 under the cover of panahanama and it is in the custody of the Government till today. This Court had sought for the report of the Joint Collector, Ranga Reddy District in C.C. No. 1888/97 by its orders dated 14-3-1997 and 13-2-2001. The Joint Collector submitted a detailed report along with photographs of the land to this Court after conducting personal inspection in the presence of the writ petitioners. The report and the photographs clearly show that the writ petitioners were never in possession of the land in question. With these averments it was prayed by the respondents that the writ petition be dismissed with costs.
4. The learned counsel Mr. M.V.S. Suresh Kumar appearing on behalf of the writ petitioners submitted at the Bar that Sharada Bai did obtain the permission before she entered into the transaction of sale of the land, which was assigned to her and Mr. Mashalkar by looking to the permission granted by the Tahsildar entered into a transaction of sale with Shantha Kumari and therefore it must be held that she is a bona fide purchaser for value.
It is further contended by the learned counsel for the petitioners that by looking to the assignment order, it is clear that in the assignment order itself it was mentioned that the land cannot be sold by the allottee without the permission of the Tahsildar and therefore the parties to the above said transaction did obtain permission from the Tahsildar and therefore the Government has no jurisdiction to resume the land holding that the transaction itself violative of the assignment order.
5. While rebutting the aforesaid arguments, the learned Government Pleader appearing on behalf of the respondents submitted at the Bar that the Tahsildar was not a competent authority to grant permission. Therefore, the entire transaction is illegal and violative of terms and conditions of the assignment order. The learned Government Pleader drew my attention to Section 48-A of the said Act. Section 48-A of the said Act reads as under:
"48-A (1):-- In the case of a permanent alienation or transfer of any land in respect of which protected tenant has acquired the right of ownership under section 38 or section 38-D or section 38-E at the reasonable price determined by the Tribunal and more than eight years have not elapsed since the date of such acquisition, the Tahsildar may instead of sanctioning the alienation or transfer take over the land on payment to the projected tenant as compensation a sum equivalent to the reasonable price so determined.
Where any portion of the reasonable price still remains to be paid to the landholder whose interests were acquired by the protected tenant, such portion shall be paid to the landholder from the compensation payable under this section and the balance shall be paid to the protected tenant.
2) The land so taken over shall vest in the Government free from all encumbrances and shall be under their management until it is disposed of in accordance with the rules made4 under this Act.
3) Nothing contained in this Section shall apply:--
a) to a simple mortgage effected by the protected tenant; or
b) to any gift made by the protected tenant in favour of his spouse or children; provided that any alienation or transfer of land made by the donee within a period of eight years from the date of the acquisition of the ownership of the protected tenant shall be subject to the restrictions contained in the section as if it was an alienation or transfer made by the protected tenant."
With this legal provision, the learned Government Pleader submitted that the Government has a power to resume the land. There is a violation of the terms and conditions of assignment order. It was also submitted by the learned Government Pleader that vires of the above section was upheld by this Court and it was held that this Act has retrospective effect also.
6. The learned counsel Mr. M.V.S. Suresh Kumar appearing on behalf of the petitioners herein submitted at the Bar that even for the sake of arguments, it is held that the Tahsildar had no jurisdiction to grant permission but the assignment order, which is issued in favour of the original assignee Smt. Sharada Bai, goes to show that the Tahsildar was competent person to give permission in case she intended to sell the land. With this factual position on record, the learned counsel Mr. M.V.,S. Suresh Kumar further submitted at the Bar that Sharada Bai and Bhagavanth Rao Mashalkar virtually believed that Smt. Sharada Bai had a right to sell the land and Mashalkar had a right to purchase the land.
The learned counsel Mr. M.V.S. Suresh Kumar further submitted at the Bar that the land was sold by registered sale deed in the year 1967 whereas the resumption order, which is impugned in this writ petition, is passed after about 33 years of such transaction and therefore the Government has no right to resume the land.
The learned counseAIRl further submitted that this Court on the earlier occasion had an opportunity to decide the above issue. The learned counsel firstly invited my attention to the ruling reported in GUDEPU SAILOO AND OTHERS v. GOVERNMENT OF ANDHRA PRADESH rep. By its Secretary, Revenue Dept., & others., It was the judgment of a learned Single Judge. The learned Single Judge held that the resumption of assigned land by the Government for alleged irregularities of 34 years after assignment unreasonable and arbitrary even though no period of limitation is prescribed for exercising revisional power, such power be exercised within reasonable time. The learned Single Judge further held that the period of limitation may be 90 days as in the case of appeal and at the most it should not exceed one year.
The learned counsel Mr. M.V.S. Suresh Kumar invited my attention to one more ruling of the Division Bench reported in SMT. P.MANGAMMA & OTHERS v. THE WOMEN'S CO-OPERATIVE HOUSING SOCIETY LTD., BARAKATPURA, HYDERABAD rep. By its Secretary and others., (D.B) The said Bench was presided by the Hon'ble Mr. Justice Lingaraja Rath, as he then was. Their Lordships were pleased to hold that the revisional power of the Collector under section 166-B of A.P. Land Recovery Act, 1317 Fasli be exercised within a reasonable period having regard to the fact and circumstances of each case, exercise of that power by canceling assignment of land made several years prior thereto when the third party interest are involved having acquired right and interest in the land and when pucca buildings were constructed therein investing huge sum of money in the meantime is illegal and unreasonable. In paras 10 and 12 of the said judgment, their Lordships were pleased to hold as under:
"10. Before us the same grounds and contentions, which were urged in the writ petitions were reiterated. The first ground urged before us is that even assuming that there were certain irregularities in the procedure adopted by the Tahsildar while assigning the lands in the year 1953, it is totally impermissible for the District Collector to pass the order under section 166-B of the Act after a lapse of 31 years from the date of the assignment. In support of this submission the learned counsel appearing for the parties have placed reliance on the decision of the Supreme Court in STATE OF GUJARAT V.PATEL REGHAV NATHA AND OTHERS - 1969 S.C. 1297; and the decision of the Division Bench of this Court in A. KODANDA RAO v GOVERNMENT OF ANDHRA PRADESH - 1981 (2) ALT 280 and judgment in Writ Appeal No. 1521 of 1988 - S.B. DHARMA REDDY v. THE DIRECTOR OF SETTLEMENTS, A.P. HYDERABAD AND ANOTHER - 1989 (1) ALT 51 (SN). The learned counsel for the appellants and the petitioners have also placed reliance on the decision of the Division Bench of this Court in which one of us (Lingaraja Rath, J) was a party to contend alternatively that even assuming the assignment made by the Tahsildar in the year 1953 is illegal and defective nevertheless it is not open to the District Collector to resume the land by canceling the assignment and the actual resumption of the land cannot be straightaway resorted to by the authorities. Therefore it becomes necessary to consider and decide the first contention raised by the learned counsel for the appellants and the petitioners relating to inordinate delay in initiating the proceedings by the District Collector under section 166-B of the Act. It is so because if the contention of the appellants and the petitioners in that regard is upheld there will not be any necessity to decide the other questions urged before the court."
"12. In a Kodanda Rao v. Government of Andhra Pradesh (2 supra) the Division Bench of this Court dealt with the power vested in the Director of Settlement under section 52 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948. The Division Bench held that the suo motu power of the revision vested in the Director of Settlement should be exercised within a reasonable time and in that case that power was exercised by the Director of Settlement suo motu after a lapse of 12 years and the Division Bench condemned the action as illegal and bad. In that connection the Division Bench observed thus in para 10 of the judgment as under:
'A Division Bench of this Court in K. Venkata Reddy and others v. The Director of Settlements, Survey and Land Records, Hyderabad and others- 1975 (1) A.P. Law Journal 111, has considered the contention that the revisional powers conferred on the Director of Settlements can be exercised only within a reasonable time and that the said power exercised after a lapse of seven years from the date of the grant of pattas to the applicants cannot be said to have been exercised within a reasonable period and observed that nowhere does the Act fix the period within which the Director of Settlements has to exercise his suo motu revisional jurisdiction'. After referring some of the decisions of the Supreme Court, the Division Bench observed:
'The only limitations to which the power is subject are that the revisional authority should not trench upon the powers which are expressly reserved by the Act, or rules to other authorities and should not ignore the limitations inherent in the exercise of those powers...' There cannot be no doubt that where no period of limitation is prescribed by the Act or the Rules made thereunder for the exercise of the suo motu power of revision, the exercise of that power cannot be impugned on the ground that it is barred by limitation. No period of limitation can be imposed otherwise than by statute or the rules made thereunder. But nonetheless, merely because power is vested in an authority to revise the orders of the subordinate authorities suo motu, (as observed by our learned brother Jeevan Reddy, J in the order under appeal) " the power has to be exercised within a reasonable time'. In our view in cases where no period of limitation is prescribed under the statute or the rules made thereunder, for exercise of revisional powers suo motu, the question for consideration is not whether the exercise of the power is barred by limitation for in the absence of a period of limitation prescribed under the Act, the question of bar of limitation cannot arise it is a question of the reasonable period of limitation within which that power should be exercised where the question is one exercising that power within a reasonable time and what is reasonable period would undoubtedly be dependant upon the facts and circumstances of each case. The Division Bench of this Court in W.A. No. 1521 of 1988 (S.B. Dharma Reddy v. The Director of Settlements, Andhra Pradesh, Hyderabad and another (2-A supra) held that exercise of revisional power by the Director under section 52 of the Estates Abolition Act after a lapse of 27 years from the date of the grant of patta is totally unreasonable and oppressive. Therefore, in the light of the decisions of the Apex Court and that of our Court what is required to be seen is whether it could be said that the District Collector exercised his revisional power under section 166-B of the Act within as reasonable period having regard to the facts and circumstances of the present case."
This Court had made queries with the learned Government Pleader when this judgment was delivered by the learned Judges of this Court whether the SLP against the above judgment was filed in the Apex Court. The learned Government Pleader replied in the negative. He sticks up to the stand that the Government has a power to resume the land in case of breach of condition of assignment. But the query made by this Court whether the Government can exercise such powers after lapse of 33 years. The learned Government Pleader has no reply to the aforesaid querry. Moreover in the above transactions, interest of many parties are involved. They must have purchased the land by paying huge amounts and if the Government resumes the entire land, the petitioners and others will be thrown on the streets and there will be put to heavy financial losses.
The learned Government Pleader further contended that the Apex Court of this Country was pleased to hold that the Government had a power to resume the land in case there is a breach of assignment conditions. The learned Government Pleader invited my attention in a ruling reported in STATE OF GUJARAT v PATEL RAGHAV NATHA & OTHERS., The Division Bench of this Court considered this ruling in the earlier decision (Supra No. 2) and the Division Bench of this Court was pleased to hold that such powers have been exercised within the reasonable time. The Bench never said that the Government had no power to resume the land but it was pleased to hold that such powers have been exercised within a reasonable time cannot be 30 or 33 years as it was done by the Government in the above reported case.
Considering the facts involved in this writ petition and considering the relevant law on the point, this Court is also of the considered view that the Government though they have power to resume the land, it has to be done within a reasonable time and the reasonable time should not exceed more than one year. Under these circumstances, this Court allows the writ petition and set aside the impugned order of resumption passed by the Government.
Thus, the writ petition is allowed. No costs.