Andhra HC (Pre-Telangana)
N. Venkatesa Mudaliyar And Anr. vs State Of A.P., Revenue Dept. And Ors. on 12 April, 2001
Equivalent citations: 2001(3)ALT477
JUDGMENT S. Ananda Reddy, J.
1. These two writ petitions are filed praying for the issue of Writ of Mandamus declaring the action of the respondents 2 and 4 to 6 in cancelling the D-Form patta in favour of the petitioner in W.P.No. 13133 of 1995 and in favour of the petitioners' mother and father as illegal, violative of the provisions of Articles 14, 21 and 300-A of the Constitution of India and also contrary to the provisions of the Board Standing Orders and the Assignment Rules and also the orders of the Government in G.O.Ms.No. 1307, Revenue, dated 23-12-1993.
2. It is stated that the petitioner's mother, Munemma was landless poor person and she was assigned D-Form Patta in respect of an extent of Ac. 5-00 dry land in Sy.No. 659/2 of Valasapalli village, Madanapalle Mandal, Chittoor District in the year 1955. Similarly an extent of Ac. 5-00 in Sy.No. 660 was assigned in favour of the father of the petitioner in addition to Ac. 1-69 cents in Sy.No. 659/2 in favour of the petitioner in W.P.No. 13133 of 1995. According to the petitioner's averments, the petitioner's father and mother were landless poor persons and therefore they made applications for assignment of the land and the Revenue authorities i.e., the then Tahasildar assigned the lands in question in their favour. Subsequently, they have spent huge amounts for bringing the lands under cultivation and they raised various trees, such as neem, ganuga and eucalyptus etc. Now the action of the Mandal Revenue Officer (MRO) in cancelling the assignment and resumption of the land to the Government is illegal and unsustainable. It is also stated that when a show-cause notice was issued to the petitioners, objections were filed before the MRO, objecting to the proposed resumption and therefore, the orders of resumption passed by the MRO are illegal and unsustainable and consequently the subsequent orders passed by the Sub-Collector, Joint Collector and the Commissioner confirming the said orders are illegal and unsustainable.
3. The learned Counsel for the petitioners contended that the action of resumption without fixing any compensation in respect of the lands resumed is illegal and liable to be set aside on that simple ground. The learned Counsel also contended that the Board Standing Orders under which the resumption has been resorted by the MRO, have no statutory force. Therefore the Board Standing Orders could not be relied upon for resumption of the land, which was assigned in favour of the petitioners and their parents about 35 years back. The learned Counsel also contended that the petitioners are entitled for fixation of compensation under the provisions of the Land Acquisition Act or at least for the market value as on the date of resumption.
4. The learned Counsel relied upon the following judgments in support of his contentions:--
G. Rajamma v. District Collector, Chittoor, ; Chittoor District Co-op. Milk Producers Union Ltd. v. C. Rajamma, ; Union of India v. Ajit Singh, ; State of A.P. v. P. Peda Chinnayya, (FB); Spl. L.A. and R. Officer v. M.S. Seshagiri Rao, and Spl. L.A. Officer, Hosanagar v. K.S.R. Rao, .
5. The learned Government Pleader, on the other hand, opposed the contention of the petitioners. It is contended that the lands in question were assigned to the petitioner as well as to the petitioner's father and mother. According to the learned Government Pleader, the assignment of an extent of 5 acres land each to the petitioner's mother and father was illegal as under the Board Standing Orders, a family unit is entitled to a maximum extent of 5 acres of land and not more than that. But, however, the petitioner's parents have misrepresented the authorities and obtained the assignment of 5 acres of land each in the name of the petitioner's father and mother. In addition the petitioner (in W.P. 13133/95) also got an assignment in an extent of Ac. 1-69 cents land. It is stated that the said assignments were made under the Rules framed under the Board Standing Orders. The assignment is conditional, which is incorporated in the assignment order itself. If the assigned lands are required for public purpose, the Government has got a right to resume those lands without paying any compensation, which condition was incorporated in terms of the assignment itself. Therefore, it is stated that the land in question is required , for the purpose of establishing Navodaya Public School, which is admittedly a public purpose and for that purpose the lands in question were resumed. In addition there are violations of the conditions of the grant as obtaining of excess assignment as well as not bringing the lands in question under cultivation in terms of the assignment. The learned Government Pleader also contended that there is no law under which the compensation has to be fixed even before resumption of the land by the Government when the land in question is required for public purpose. Similarly, if the petitioner contends that the Board Standing Orders have no statutory force, equally the assignment granted in favour of the petitioner and his parents have no statutory force and therefore the assignment itself is liable to be quashed on that ground. As the assignments were granted under the Board Standing Orders, it is not open to the petitioners to approbate or reprobate. Having obtained the benefit of assignment under those Rules, it is not open to the petitioners to say that those Rules have no statutory force. Whether those Rules have the statutory force or otherwise, the assignment Was made under those Rules and if any cancellation was made under those Rules, it is not open to the petitioner to contest that the cancellation is bad, because those Rules have no statutory force.
6. The learned Counsel relied upon a Full Bench judgment of this Court in State of A.P. v. P. Peda Chinnayya (4 Supra), apart from the Judgment of this Court in K. Narayanaswami Naidu v. State of A.P., (D.B.). and contended that as per the said judgment the assignee of a Government land would not get any title and his title is only a possessory title, which is valid against the whole world and not the real owner of the said land i.e., the Government. Therefore, the Government has got every right to resume the land as it is intended for a public purpose. Hence, the writ petitions are devoid of merit as the contentions raised by the petitioners herein were considered and rejected by all the authorities. The learned Counsel also contended that the Sub-Collector, in fact, made a personal inspection and found that the lands were not brought under cultivation and there was no improvement to the lands. Therefore, there is no merit in the contention of the petitioners.
7. Heard both sides and considered the material on record.
8. The dispute is only whether the Government in terms of the conditions of assignment could resume the land in question without payment of compensation?
9. Though various other contentions were advanced before the appellate and revisional authorities, the learned Counsel for the petitioners had raised only two contentions. According to the learned Counsel, the compensation in respect of the resumed lands has to be fixed before passing the order of resumption. The said contention is to be noted only for rejection. The learned Counsel, though, advanced the said contention, he could not place either any Rule or a binding judgment before this Court. Therefore, the said contention is clearly devoid of any merit.
10. The next contention advanced by the learned Counsel was that the Board Standing Orders have no statutory force and therefore the resumption under the Board Standing Orders is illegal and liable to be quashed. Here also, I do not find any merit in the contention of the learned Counsel for the petitioners. Admittedly, the assignments were effected under the Board Standing Orders. If according to the petitioner the Board Standing Orders have no statutory force and therefore they cannot be acted upon, then the very assignment in favour of the assignees is invalid. Therefore, even without cancellation of the assignments, the Government can resume the possession of the lands. Even though the Board Standing Orders are executive instructions, they were guidelines framed for the purpose of dealing with the matter of land revenue settlement and other allied matters related to it, apart from the resumption and disposal of the land belonging to the Government. Various guidelines have been framed for the assignment of the land, which is not required for the Government, in favour of the landless poor persons and other categories mentioned in the Board Standing Orders. In fact, even the Board Standing Orders have defined the person, who is a landless poor person and as per those guidelines a family unit is entitled for the assignment of a maximum of 5 acres of dry land or 2 1/2 acres of wet land. In the present case, the petitioner's mother and father misrepresented to the Revenue authorities and obtained assignment of 5 acres each by father and mother of the petitioners. The said assignment is therefore illegal on that ground itself. In addition, the petitioner in W.P.No. 13133 of 1995 also got an assignment of Ac. 1-69 cents. In any case as the cancellation or resumption was not on that ground, we need not delve on that issue. The lands are assigned in favour of the assignees in question, subject to certain conditions incorporated in the very assignment order itself. Condition Nos. 16 and 17 are relevant, which reads as under:--
16. In the event of the cancellation of assignment either suo motu or on appeal or on revision, the assignee shall not be entitled to any compensation for any improvements that he may have made to the land.
17. In the event of the land being required for a project or any other public purpose, the land will be resumed and no compensation shall be paid to the assignee. The decision of the Government or other authority empowered by them in this behalf shall be final on the question, whether the purpose for which the land is to be resumed is a public purpose or not.
11. In the light of the above two conditions, as the land in question was required for the purpose of establishing Navodaya Public School, the land was resumed by the MRO, the 5th respondent herein. Before passing the orders of resumption, a show-cause notice was issued for which the objections were also filed. After considering the objections the MRO passed the order of cancellation on 23-02-1988, cancelling the assignments and resuming the land to the Government. Aggrieved by the said order the petitioners preferred appeal to the Assistant Collector, Madanapalle. The Assistant Collector has even conducted personal inspection of the lands and found that the assignees have not brought the land under cultivation and there are only wild growth of shrubs and some trees. Though it was claimed by the petitioners that they have invested about one lakh rupees and brought the land under cultivation and also raised trees such as neem, eucalyptus etc., the Assistant Collector, who conducted personal inspection gave a finding that there are no trees that were grown by the assignees except the wild growth. The Assistant Collector, therefore, confirmed the cancellation and resumption of land to the Government by his order dated 19-12-1988. The petitioner further carried the matter in revision before the Joint Collector, who confirmed the same by an order dated 29-10-1991 and further revision before the Commissioner of Land Revenue. The Commissioner of Land Revenue also considered the matter elaborately and confirmed the cancellation by his order dated 05-12-1994. In fact, before the Commissioner the ground that was raised was that the lands in question are covered by the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 and the assignment is covered by the provisions of the said Act and the conditions incorporated in the order of assignment would be irrelevant and therefore the action of the authorities below was not proper and just. The Commissioner of Land Revenue rejected the said contention having found that the said Act has no application to the resumption or cancellation of the assignments.
12. From the above it is clear that the authorities below have categorically found that the petitioners have misrepresented the Revenue authorities and obtained illegal assignment more than the extent to which they are entitled. In addition the land was not even brought under cultivation, as per the terms of the assignment, thereby violating the conditions of the assignment. However, the MRO has resumed the land in terms of Condition Nos. 16 and 17 as the land was required for public purpose.
13. The learned Counsel for the petitioners relied upon few judgments of this Court as well as Supreme Court in support of his contention. In the case of State of A.P. v. P. Peda Chinnayya (4 supra), in view of difference of opinion between two Division Benches, the matter was referred before a Full Bench of this Court. The issue that was referred to the Full Bench was 'whether the assignees of Government Land are entitled to compensation under the Land Acquisition Act, in case where patta lands are needed by the Government for any public purpose? Before the Full Bench, two judgments of the Supreme Court were relied upon. They are in the case of Spl. L.A. and R. Officer v. M.S. Seshagiri Rao (5 supra) as well as the decision in the case of Spl. L.A. Officer, Hosanagar v. K.S.R. Rao (6 supra). The observations of the Supreme Court, in the case of M.S. Sesjhagiri Rao (5 supra), which are extracted in the Full Bench judgment are appropriate, which are as under:
"The Government of Mysore did not purport to exercise the power reserved by the terms of the grant, and adopted the procedure prescribed by the Land Acquisition Act. The High Court observed, relying upon the decision of the House of Lords in Attorney General v. De Kayser's Royal Hotel Ltd., 1920 AC 508 that the Government could not, after adopting the procedure prescribed by the Land Acquisition Act, seek to resort to the conditions of the grant and claim that no compensation for acquisition of the land was payable. It is true that after obtaining possession of the land in pursuance of statutory authority under Section 17, the Government of Mysore could not seek to exercise the option conferred by the terms of the grant. But on that account in assessing compensation payable to the grantees, existence of the condition which severely restricted their right could not be ignored. The grantees were entitled to compensation for the land of which the ownership was vested in them. The measure of that compensation is the market value of the land at the date of the notification, and the measure of that market value is what a willing purchaser may at the date of the notification under Section 4 pay for the right to the land subject to the option vested in the Government.
.... The Act contemplates acquisition of land for a public purpose. By acquisition of land is intended the purchase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose. Where the land is owned by a single person, the entire market value payable for deprivation of the ownership is payable to that person: if the interest is divided for instance, where it belongs to several persons, or where there is a mortgage or a lease outstanding on the land, or the land belongs to one and a house thereon to another, or limited interests in the land are vested in different persons, apportionment of the compensation is contemplated. The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired. When the land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest, subject to the clog".
'Similarly in the case of K.S.R. Rao , the Supreme Court considered a case where certain Government lands were granted to the respondents subject to the condition that if it became necessary for Government to take possession of the lands for any public purpose, then no compensation will be paid to them and despite that condition, the Government notified those lands for acquisition under Section 4, and the Land Acquisition Officer valued the rights of the respondents in the lands acquired and determined the compensation payable to the respondents and it was held that the view that the respondents were not entitled to any compensation in respect of the lands acquired could not be sustained'.
14. After considering the above two judgments, the Full Bench held as under:
"The gist of our conclusion is that where the Government resorts to the provisions of the Act for acquisition of the patta lands without resorting to the terms of the grant for resumption, it is liable to pay compensation under the Act, but such compensation will be only the market value of the interest of the owner or the assignee of the land, subject to the clog. In such cases of acquisition, the claimant would also be entitled to consequential reliefs, such as those of solatium and interest etc., under the Act. In a case where the patta lands are resumed by the Government, the assignees cannot claim compensation under the Act, but can claim compensation equal to the market value of thier interest in the land, subject to the clog. In such cases, no solatium may be payable but interest may be claimed on the amount of compensation from the date of dispossession and till the date of payment of compensation. In a case where the assignees are dispossessed from their patta lands without resuming the lands in terms of the grant and/or initiation of proceedings under the Act, the Government may be directed to initiate proceedings under the Act and to pay compensation under the Act as indicated. This would be in conformity with the directions made by this Court in some of the cases of similar nature. The answers to the other incidental questions arising out of the order reference are covered by the answers given by us to the questions specifically mentioned".
15. The learned Counsel also relied upon a Single Judge's judgment of this Court in the case of G. Rajamma (1 supra) where a learned Single Judge of this Court held that the Board Standing Orders are only executive instructions and have no statutory force and therefore under the Board Standing Orders resumption of the land assigned could not be made. But the said judgment was set aside by a Division Bench of this Court reported in Chittoor District Co-op. Milk Producers Union Ltd. (2 supra) wherein the Division Bench has made the following observations:
"It will be only reiterating one of the most salutary principles of law, but in the instant case it has become necessary that when on the one side there is 'public interest' and on the other side 'interest of an individual' the Court will protect the 'public interest' and not the 'interest of an individual'. Resumption of land, we have already noticed, is intended for a public purpose and thus the public interest is in favour of resumption of land. What rights under assignment the writ petitioner got, however, is an issue, which has nothing to do with the public purpose aforementioned. No assignee can get a right to transfer and in that no transferee can get a right. The document of assignment has incorporated a condition and that condition always remained alive irrespective of the duration of possession of land by the assignee or those who inherited from the assignee. The principle of derivative title is not at all attracted in the case of an assignment because the proprietory right remains with the person who assigns and does not vest in the assignee. We are clearly of the view that learned Single Judge has committed a serious error of law in entering into the issue of the interests and rights which assignees derived from the document of assignment or otherwise and in this respect, gone beyond the limitations which the Courts have evolved for exercise of the power of judicial review under Art. 226 of the Constitution of India. While exercising its power under Art. 226 of the Constitution of India against executive actions, the Court does not sit in appeal. It undoubtedly takes notice of facts, but if facts are in dispute or are required to be established beyond doubt, it leaves to the better discretion of the petitioner to seek remedy in the ordinary Civil Court. Many facts will be required to be assumed, before the petitioner's locus standi is accepted - is she the daughter-in-law of the original assignee?, was she in possession of the land and cultivating as the conditions of assignment provide for?, did she get any right by prescription? And if so, under which law such prescriptive right is provided for? Nothing in this behalf is investigated and on mere statement and perhaps, the impression that the writ petitioner - respondent is a landless poor, learned Single Judge has gone into all aspects which, in our opinion, are not relevant for the purpose of the Government's resuming the land for a public purpose. The better course for all concerned in such a situation will be to leave the parties to their discretion to establish their right in appropriate Court of law".
16. In addition the learned Government Pleader relied upon certain observations of a Division Bench of this Court in the case of K. Namyanaswami Naidu (7 supra), wherein it was held that "in any case the concept of vested right in respect of assignment of land cannot be acknowledged. Assignee at the best has the possessory right which is good against the whole world but not against the real owner".
17. From the consideration of the above decisions, it is clear that if the assigned lands are acquired by the Government under the provisions of the Land Acquisition Act, it is obligatory on the part of the acquiring authorities to pay compensation in terms of the provisions of the Act. But where the land is resumed in terms of the conditions of assignment, there was no obligation on the part of the authorities resuming such lands. In fact, even as per the Full Bench judgment, the assignees can claim compensation equal to the market value of their interest in the land and not in respect of the land. But here the findings are that the lands in question are not brought under cultivation, though the petitioners have contended that they have invested one lakh of rupees and brought the lands under cultivation. A clear finding was given by the authorities below that the petitioners have not produced any evidence proving their claim that they have invested any amount for bringing the lands under cultivation. In addition, the report of the Inspecting authority shows that the land is covered by only wild growth such as shrubs and a part of the land is also covered by the rocks, which clearly goes to show that the land was not brought under cultivation and hence the assignees have no interest in the land. In addition the petitioners, who have filed the present writ petitions are not agriculturists, their livelihood is not agriculture and on the other hand they are carrying business in TVS-Mopeds, which clearly shows that they are engaged in carrying the business and not engaged in the activity of agriculture.
18. Under the above circumstances, I do not find any merit in the present writ petitions and therefore they are accordingly dismissed. No costs.