Andhra Pradesh High Court - Amravati
Bandi Lakshmi Devi, vs The State Of Andhra Pradesh on 16 March, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.5937 of 2020
ORDER:
This writ petition under Article 226 of Constitution of India is filed, to issue Writ of Mandamus, questioning the notice in S.No.B/322/2020, dt.27-02-2020 issued by 4th respondent calling upon the petitioner to submit his explanation as to why the house site patta, dt.15-06-2009 granted in the petitioner's favour for the land in an extent of Ac.0.03 cents in Sy.Nos.163 and 164 in Plot No.7 of Nelatur Village, Duvvuru Mandal, YSR District, cannot be cancelled, stating that the petitioner violated the condition No.6 of the patta by not constructing a house in the assigned land, even though the petitioner constructed a house bearing D.No.2/270 and residing therein, and declare the action of respondents as arbitrary, illegal, without jurisdiction and contrary to BSO 21(7)(ii) of the A.P. Revenue Board Standing Orders and Articles 14, 19, 21 and 300-A of the Constitution of India, consequently set aside the same.
It is the case of petitioner that the 4th respondent allotted house site in an extent of Ac.0.03 cents in Sy.Nos.163 and 164 in Plot No.7 of Nelatur Village, Duvvuru Mandal, YSR Kadapa District, hereinafter referred as the 'subject house site' was assigned in favour of the petitioner through V.H.S. Patta, dt.16-05-2009. Thereafter, the petitioner with great difficulty levelled the subject house site, constructed a house with Tin Sheet roof in part of the subject house plot and also raised compound with Kadapa slabs and living therein. The petitioner is also using part of the subject house plot as a chow shed and the remaining extent as hayrick yard, for keeping agricultural implements and that she is paying property tax to the Panchayat for the House No.2/270, obtained electricity connection and paying electricity consumption charges in the name of the petitioner with Service No.26112270000291 and that the petitioner is continuously in possession and enjoyment of the land assigned.
While the matter stood thus, the impugned notice dt.27-02-2020 was issued calling upon the petitioner to submit her explanation to the proposed cancellation for violation of condition i.e., failure to raise construction within three (03) months from the date of such assignment. The petitioner challenged the same on two grounds. The 1st ground is that the petitioner raised a construction i.e., Tin Sheet Shed, and paying property tax to the Panchayat, obtained electricity connection referred above and she is living therein. Therefore, the question that she did not raise any construction and alleged violation of conditions of patta is false. The 2nd ground urged before this Court is that the Tahsildar has no capacity to cancel the patta in view of the principle laid down in the judgment in P.V.Satyanarayana Murthy and others v. State of Andhra Pradesh1 and requested to set aside the same.
The petitioner produced a copy of patta granted i.e., assignment order issued in favour of the petitioner, so also house tax demand notice and receipt evidencing payment of house tax besides producing positive photographs and electricity consumption receipt evidencing payment of electricity consumption charges to substantiate her contention. Whereas learned Assistant Government Pleader for Revenue (Assignment) placed on record the written instructions, dt.09-03-2020 and raised specific contentions as follows, which are extracted hereunder for better appreciation: -
"The petitioner Smt.Bandi Lakshmidevi, W/o B.Subba Reddy is a resident of Nelaturu Village, Duvvur Mandal. She was granted a house site patta for an extent of Ac.0.03 cents in Sy.Nos.162 and 163 of Nelaturu Village on 15-06-2009. Prior to grant of house site patta to her there is a road (Raastha) passing through this land for the villagers. The petitioner an extent of Ac.0.01 ½ cents out of Ac.0.03 cents, leaving the road as it is for the villagers. Accordingly, the villagers have been using the land as 'Raastha' since 10 years without any objections from the petitioner. Recently, a cement road has been sanctioned for 1 2013(1) ALD 245 the site being used as road by the villagers. Aggrieved by the sanction of cement road, the petitioner has raised objections stating that the road site belongs to her by virtue of house site patta. She has occupied the site for the storage of hay heap and cattle. However, the villagers are passing through this land. In fact, the petitioner has no any convenience or obstruction if the cement road is formed in the vacant road land. A photograph taken showing the location of the house of the petitioner and the Raastha used by villagers clearly confirm the above fact."
The respondents also made several allegations while denying the contentions of the petitioner i.e., competency of 4th respondent to issue notice impugned in the writ petition and requested to dismiss the writ petition.
As stated above, the 1st ground urged by the petitioner is that the petitioner raised a house with Tin roof shed and using a part of plot as hayrick yard and cattle shed and for storage of other agricultural implements. Thus, the petitioner raised construction within a period of three years. The said fact is substantiated by filing a demand notice and receipt evidencing payment of property tax to the Panchayat bearing receipt number Assessment 278 of Nelatur Village Gram Panchayat 277 and 278.
Apart from that the electricity bill for the service No.26112270000291 of Nelaturu Village to establish that the petitioner is paying electricity consumption charges for the electricity connection to the house of the petitioner, the positive photograph would also show clearly to establish that the petitioner raised a construction and residing therein and the land is surrounded by a compound wall with Kadapa slabs.
The assignment is not dispute, but the only dispute is raising of construction. Eventually, the respondents in the written instructions specifically stated that the positive photographs show that the raastha used by the villagers is appearing the photos itself. The allegation made in the para extracted above is suffice to disbelieve the contention of the respondents that the petitioner failed to raise any construction within three years in compliance of conditions of assignment. Hence, I find that the notice issued by the respondents on the ground of violation of conditions of patta i.e., failure to raise construction within three years is false and issuing of such notice by 4th respondent is illegal and arbitrary on the ground that she violated the conditions of patta as stated above. Therefore, on this ground alone the notice is liable to be declared as arbitrary and illegal.
Though the petitioner raised contention about the competency of Tahsildar to cancel the patta and relied on judgment in P.V.Satyanarayana Murthy and others v. State of Andhra Pradesh1 referred supra wherein in Para 10 of the judgment, the learned Single Judge of this Court held as follows:-
Para 10: The orders of assignment of house sites were passed by the 4th respondent, on 31-05-1979, in favour of the petitioners. It is clearly mentioned that the assignments are made under the Board Standing Order (BSO) No.21 and in the form, Appendix 18. Once the assignment is made under BSO No.21, the only authority competent to cancel it, if at all, is the Revenue Divisional Officer. This is evident from clause 7(iii). The provision reads:
"Right of re-entry - The right of re-entry, whether under the provisions of the order of assignment or under those of any subsidiary agreement, should be enforced only under the orders of the Divisional Officers. Before ordering such re-entry, Divisional Officers may, as a matter of grace, give notice (a) to the grantee if he can be found, and (b) in the District Gazette."
But, the learned single Judge did not refer Rule 3 of Rules 2007 Rules, but based on A.P. Revenue Board Standing Orders this order is pronounced. In any view of the matter, it is not the appropriate case to decide the competency of an officer who issued the impugned notice since the impugned notice is issued to the petitioner as recited in the earlier para. Therefore, it is left open to the parties to raise any contention as to the competency of Tahsildar the appropriate case. 1 2013(1) ALD 245 Therefore, the writ petition is disposed of directing the respondents not to dispossess the petitioner on the ground of alleged violation of condition of the patta i.e., for failure to raise construction within three years without touching any other contentions about the existence of pathway etc., since it is not in dispute. There shall be no order as to costs.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
____________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 16.03.2020 IS THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY Writ Petition No.5937 of 2020 Dated 16.03.2020 IS