Andhra HC (Pre-Telangana)
Sanjay Rural Electrical Co-Operative ... vs G. Mallaiah And Ors. on 29 July, 1994
Equivalent citations: 1994(3)ALT593
JUDGMENT Lingaraja Rath, J.
1. The writ appeal is directed against the order of the learned single Judge dated27-7-1987allowingWritPetition No. 8164 of 1982 filed by the respondents 1 and 2 against the order of cancellation of assignment of land made in their favour.
2. The facts of this case have a chequered list of events for more than thirty years. The respondent No.l and one Sri Shaik Hyder, husband of the 2nd respondent herein, were assigned the disputed land measuring Ac.6.07 gts. in Survey No. 339 in Jogipet village in the year 1960 under the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli (hereinafter referred to as 'the Act') read with the Rules of Assignment issued in G.O.Ms. No. 1406 dated 25-7-1958 (hereinafter referred to as 'the Rules'). About seventeen years after the assignment, the Tahsildar, Jogipet, passed an order of resumption of land on 30-10-1977 on the ground that the lands had not been put into cultivation within three years of the assignment. An appeal filed by the respondents 1 and 2 before the Joint Collector was allowed on 7-4-1979 holding that the Tahsildar had not verified the pahanis (record of rights) in which the land had been mentioned as cultivated land and that the order of resumption had been passed earlier to the issue of show-cause notice against resumption. The Joint Collector issued directions in the appeal that the Tahsildar could take action in accordance with the prescribed procedure. The assignment was again cancelled by the Tahsildar on 11-7-1980 on the very same ground of non-cultivation of the land within three years. During the pendency of the appeal filed by the respondents 1 and 2 before the Sub-Collector against the order of cancellation, the Tahsildar on 15-7-1980, recorded the evidence of the village patwari that he had not written about the cultivation of the land in the pahanis (ROR) and did not know how the entry of the land being cultivated came to be recorded in the pahanis. The appeal was dismissed by the Sub-Collector on 20-5-1982 on the finding that the cultivation was nominal. The finding was based upon the evidence of the patwari. The other two grounds for dismissing the appeal were that the 1st respondent was a minor at the time of assignment of the land and that his father was possessing Ac.8-04 gts. of land at the time of assignment. A further appeal preferred before the Joint Collector against the dismissal of the appeal also failed on 6-11-1982. The Writ Petition No. 8164 of 1982, out of which, the present appeal arises, was filed seeking reversal of the order passed by the appellate authorities as also the order passed by the Tahsildar.
3. Prior to the filing of the writ petition, respondents 1 and 2 had continued in possession of the land throughout by virtue of the orders of stay obtained from different authorities and on 12-11-1982 an order of stay was also passed in their favour in the writ petition. The writ petition was originally filed against the State Government and the authorities who had passed and confirmed the orders of cancellation. Later, "The Sanjay Rural Electrical Co-operative Society Ltd.", the present appellant who claims to have been put in possession of the disputed land on 7-11-1982 by virtue of a panchanama, got itself impleaded as Respondent No. 5 in the writ petition. The writ petition was allowed on 27-7-1987 on the findings that the respondents 1 and 2 had brought the land under cultivation within three years and if at all there was any violation of the conditions of assignment, they could not have been evicted from the land by the executive powers of the Tahsildar but that of necessity, the State had to approach the civil Court for the purpose and that out of Acs.6.07 gts. of the land assigned, four acres of land had already been acquired by the Government for the purpose of a PWD road and hence that land could not be put under cultivation. Respondent No. 5-Society being aggrieved, has preferred this appeal.
4. Mr. Sridhar Reddy, learned Counsel appearing for the appellant urges the very same questions decided by the Hon'ble learned single Judge, viz., the land having not been put to cultivation within three years the proceedings of resumption are valid. On the other hand, it is the submission of Sri Gopal Reddy, learned counsel for the respondents 1 and 2 that the appellant has no locus standi to maintain the appeal as there could not have been any legal conferment of title on it by the Tahsildar on the basis of a panchanama.
5. Admittedly, the assignment of land is statutorily provided for under Section 54 of the Act and it has to be done in accordance with the prescribed procedure in the Act and the rules made thereunder. It is an admitted fact that there was no order of assignment passed in favour of the appellant. Therefore, without such assignment being made, the Tahsildar had no power to put the appellant in possession only by virtue of a panchanama. No authority of the Tahsildar for the purpose is cited before us and hence we must hold that the act of the Tahsildar putting the appellant in possession of the land was an act not authorised in law. Apart from that, throughout the proceedings, an order of stay in favour of the respondents 1 and 2 had been in operation and hence it is not understood as to how on 7-11-1982, the Tahsildar could have put the appellant in possession of the land.
6. Apart from the question of locus standi of the appellant, even otherwise, there are no grounds to interfere with the orders of the learned single Judge. Rule 6 of the Rules deals with terms and conditions of assignment and provides inter alia that the assignment shall be free of market value, shall be heritable but not alienable and shall be brought under cultivation within three years. Since statutory rights are created in favour of the assignees, power of resumption has also to be statutorily provided. The power of resumption has been purported to be exercised by the Tahsildar purportedly because of the breach of the conditions of assignment. Such power of resumption is absent in the rules, a position which the learned Government Pleader concedes. He places G.O.Ms. No. 1562, dated 13-9-1963 in connection with the issue. The order recites that on the Collector of Nellore making a representation regarding delegation of powers in resuming Government lands granted under the revised assignment policy, the Government, after consultation with the Board of Revenue, had issued orders in G.O.Ms No. 1137, Revenue dated 4-7-1963 delegating the power of resumption to the same assigning authorities and that, on the same analogy, the order stated, the Government intends to extend the principle to Telangana area and, therefore, direct the Tahsildars and the Deputy Tahsildars in independent charge, who are the assigning authorities, should be the authorities competent to order resumption in case of any breach of the conditions in respect of the land assigned in Telangana area. All that the order purported to state was that the power of resumption in case of breach of the conditions was being delegated to the respective Tahsildars and Deputy Tahsildars. The G.O., however, does not help the Government Pleader as the very power of resumption is not able to be traced either to any provision in the Act or any of the provision of the Rules. Even if G.O.Ms. No. 1562 dt. 13-9-1963 is taken as fresh conferment of power of resumption on the Tahsildar or the Deputy Tahsildar, yet the assignment having been in the year 1960 it becomes doubtful whether by virtue of the power conferred in 1963 the rights granted under the statute could be disturbed. But we do not wish to finally deal with the matter as no arguments have been advanced before us in that behalf.
7. Even if it could be said that for the breach of the conditions of the assignment resumption could be directed, yet the actual resumption is a matter for the common Court of law and could not be straightaway resorted to by the resuming authority. After an order of resumption is passed by the appropriate authority the real taking over of the land, unless any specific provision in that regard has been made in the Act or in any other statute, can be directed only by such a Court. Hence there could not have been an occasion for handing over of the land to the appellant on 7-11-1982. We doubt there having been any divesting of possession of the respondents 1 and 2, at all. As has been noticed earlier, even in passing the order of cancellation of assignment, the Tahsildar never followed the principles of natural justice. No notice was served upon the respondents 1 and 2 for the purpose even though the direction of the Joint Collector in allowing the appeal of the respondents 1 and 2 was that he was to take action in accordance with the prescribed procedure. Complying with the principles of audi alterm partem was the minimum requirement which should have been followed before the order of resumption could be passed. That was also not done. Thus, viewed from any angle, the action of the Tahsildar can never be sustained. The respondents 1 and 2 have throughout continued in possession as discussed earlier. More than thirty three years have elapsed and it is desirable that the matters should receive finality. In that view of the matter, we do not find any justifiable reason to disturb the judgment of the learned single Judge. The appeal has no merit and is dismissed. No costs.