Andhra Pradesh High Court - Amravati
Pobbaraju Laxmamma, vs The State Of Andhra Pradesh, on 1 November, 2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.20776 OF 2020
ORDER:
Initially, this writ petition is filed under Article 226 of the Constitution of India, claiming the following relief:
"To issue Writ of Mandamus declining the inaction of unofficial respondents in restoring the land of petitioner by evicting the unofficial respondent from petitioner‟s land situated in Sy.No. 472 of Boyyalavaripalem Village, Gudavalur Gram Panchayath, Kondapuram Mandal, SPSR Nellore District as illegal and arbitrary and consequently direct the official respondents to restore the possession of the petitioner"
Later, the prayer was amended by order of this Court in I.A.No.2 of 2021 dated 22.09.2021 by replacing the sentence only to the extent of "declaring the inaction of official respondents in restoring the land of the petitioner by evicting the unofficial respondents", as there is a typographical error in the prayer.
The brief facts of the case are that, the petitioner - Pobbaraju Laxmamma is the resident of Gudavalur Gram Panchayat, Boyalavaripalem Village, SPSR Nellore District. Her husband Pobbaraju Tirupal was assigned land of an extent of Ac.0-04 cents in Boyyalavaripalem Village, Gudavalur Panchayat in the year 1983. Since then, the petitioner‟s family was in possession of the above land. In the year 2010, the petitioner‟s husband - Tirupal passed away. Due to financial crisis, the petitioner left the village in search of her livelihood. After sometime, she returned to the village with a view to construct a house. She unloaded all the raw material in her land for construction of the house. While so, she was obstructed by few villages on the ground that the subject land belongs to Respondent Nos. 5 to 7. Thereafter, the petitioner MSM,J WP_20776_2020 2 approached the official respondents in the month of July, 2020, but they have not taken any action. The petitioner found that certain construction is being carried out by unofficial respondents in the land allotted to the husband of this petitioner.
The petitioner specifically contended that, after death of her husband - Tirupal, she has not sold the land to any person nor authorized any person to take possession of the land, but she was obstructed from entering into the land. When the petitioner questioned, the unofficial respondents informed that they are constructing house and in that regard, they have dug the land for raising pillars. When the petitioner approached the unofficial respondents to settle the dispute, they abused and threatened her with dire consequences. Though the petitioner approached the local police, as the unofficial respondents are highly influential persons, the police have failed to take any action.
The petitioner submits that the subject land is allotted to her husband - Tirupal; the petitioner and her three children succeeded the same as legal heirs after death of Tirupal and the unofficial respondents i.e. Respondent Nos. 5 to 7 have no right to enjoy the property. Even as per the law, even Tirupal or her legal heirs are not entitled to sell or create any interest in the assigned land to the third party and third party is not entitled to claim any right in the property. But, in the present case, nothing of such kind happened, but the petitioner being a member of Schedule Caste and financially weak, Respondent Nos. 5 to 7 took advantage of the poverty of this petitioner in collusion with the revenue authorities -
MSM,J WP_20776_2020 3 Respondent Nos. 2 to 4, as well as enforcing authorities, raised constructions and therefore, action of the official respondents in failure to restore possession of the property of this petitioner is illegal and arbitrary.
It is contended that, land of Ac.0-04 cents in Boyyalavaripalem Village, Gudavalur panchayat was allotted to the petitioner‟s husband - Tirupal by the fourth respondent/Tahsildar long ago and no third party can occupy the land of this petitioner as per law. Even the same is brought to the notice of the official respondents who are bound to prevent any activity that is being carried out by third parties in the said land and further, if any third party is in possession, he/she has to be removed from the possession and possession to original assignee or legal heir has to be restored. Though the petitioner approached the official respondents several times with a request to evict Respondent Nos. 5 to 7 from her land, but no action was taken. Therefore, aggrieved by the action of Respondent Nos. 1 to 4, the present writ petition is filed seeking a direction as stated above.
Respondent Nos. 5 to 7 filed counter affidavit along with vacate stay petition in I.A.No.1 of 2021 contending that, Respondent Nos. 5 to 7 filed O.S.No.107 of 2020 on the file of Principal Junior Civil Judge, Kavali against Pobbaraju China Malakondaiah and Pobbaraju kamalakar, who are the sons of the petitioner and Tirupal. Respondent Nos. 5 to 7 also filed I.A.No.174 of 2020 in O.S.No.107 of 2020 for grant of temporary injunction and the Trial Court was pleased to grant interim order dated MSM,J WP_20776_2020 4 28.07.2020 in favour of sons of the petitioner. The interim order is being extended from time to time and as on date, it is in force. Therefore, the writ petition is filed by suppressing pendency of civil litigation and subsisting interim order, thereby, the writ petition is not maintainable and sought dismissal of the writ petition on the ground of suppression of fact.
It is further contended that, one Tallapalem Srinivasulu who is father of Respondent Nos. 5 & 6 and husband of Respondent No.7 purchased house plot to an extent of 24 ankanams i.e. 192 sq.yds in Sy.No.472 of Gudavalluru Village, Kondapuram Mandal, Nellore District under Registered Sale Deed dated 12.03.1991 from Sri Pobbaraju Tirupal. After purchase, Tallapalem Srinivasulu constructed a thatched house and also obtained electricity service connection in his name, so also paid house tax to Gudavalluru Gram panchayat and electricity consumption charges for the house he purchased. Tallapalem Srinivasulu - father of Respondent Nos. 5 & 6 died intestate leaving behind him to Respondent Nos. 5 to 7 as legal heirs and they are in possession of the property, since the date of death of Tallapalem Srinivasulu. In order to construct pucca building over the land, Respondent Nos. 5 to 7 removed the old thatched house and started construction of house after obtaining permission from the gram panchayat. At this stage, the sons of the petitioner started interfering with the possession without any right and in those circumstances, Respondent Nos. 5 to 7 issued legal notice to the sons of the petitioner and the sons of the petitioner got issued reply to the said legal notice on 09.07.2020 with false allegations by sons of this MSM,J WP_20776_2020 5 petitioner. However, admitted about the sale of property in favour of father of Respondent Nos. 5 & 6. Thus, the petitioner suppressed certain facts and approached this Court claiming discretionary relief of writ of mandamus under Article 226 of the Constitution of India and consequently, the writ petition is liable to be dismissed.
It is further contended that, Tallapalem Srinivasulu - father of Respondent Nos.5 & 6 was in possession and enjoyment of the property by purchase under registered sale deed dated 12.03.1991 and was paying property tax and electricity consumption charges. But, consequent upon death of Tallapalem Srinivasulu, Respondent Nos. 5 to 7 became owners of the property by way of succession and continuing in possession and they are in enjoyment of the same. Interim injunction obtained from the Trial Court in I.A.No.174 of 2020 in O.S.No.107 of 2020 is in force. But, the petitioner instead of approaching the Civil Court, approached this Court invoking Article 226 of the Constitution of India and thereby, the petitioner is not entitled to claim any relief in the writ petition and requested to dismiss the writ petition finally.
During hearing, Sri P. Ravi Kiran, learned counsel for the petitioner contended that even if any sale deed is executed by the husband of this petitioner - Tirupal in favour of Tallapalem Srinivasulu - father of Respondent Nos. 5 & 6, it is void ab initio and not enforceable and that, the purchaser will not get any right under the sale deed. No permission was obtained from competent authority to sell the property by Tirupal. Apart from that, the MSM,J WP_20776_2020 6 petitioner being the wife of the deceased Tirupal claiming to be the owner, did not suppress any material fact while approaching this Court and non-disclosure of interim order in I.A.No.174 of 2020 in O.S.No.107 of 2020 and pendency of OS..No.107 of 2020 on the file of Principal Junior Civil Judge‟s Court, Kavali, is not a ground and failure to disclose issue of legal notice on the sons of Tirupal and this petitioner is not a ground to claim relief in the writ petition. On that ground, writ petition cannot be dismissed. In any view of the matter, the provisions of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short „Act No. 9 of 1977‟) conferred such power on the Tahsildar to restore possession of the property to this petitioner and the petitioner made request to Respondent No.4 several times for restoration. Hence, the petitioner sought writ of mandamus, since Respondent No.4 did not respondent to the request made by this petitioner.
Sri Srinvias Karra, learned counsel for Respondent Nos. 5 to 7 would contend that, when the property was sold to Tallapalem Srinivasulu - father of Respondent Nos.5 & 6 under registered sale deed, he became absolute owner of the property and he is in continuous possession and enjoyment of the property until his death. Therefore, under sale deed, possession of the property by this petitioner is legal and consequently, the fourth respondent is not entitled to restore possession of the property to the petitioner, while removing the petitioner from the possession of the property. Apart from that, when the petitioner and her sons are living together, failure to disclose the interim order in I.A.No.174 of 2020 in O.S.No.107 of 2020 dated 28.07.2020 and legal correspondence MSM,J WP_20776_2020 7 between the sons of the petitioner and Respondent Nos. 5 to 7 is fatal. On this ground, the discretionary relief of writ of mandamus can be denied.
It is further contended that, the writ petition is not maintainable when O.S.No.107 of 2020 is pending before the Civil Court and writ petition before this Court invoking jurisdiction under Article 226 of the Constitution of India, is liable to be dismissed and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that need to be answered by this Court are as follows:
1. Whether the petitioner suppressed any material fact. If so, whether the writ petition is liable to be dismissed on the sole ground of suppression of material fact?
2. Whether a direction be issued to Respondent No.4 - Tahsildar for restoration of possession of Ac.0-04 cents bearing Plot No.4 in Sy.No.472, which was assigned to the petitioner's husband - Tirupal removing Respondent Nos. 5 to 7 from possession of the property in terms of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977?
P O I N T No.1:
The first and foremost contention of the petitioner is that, the petitioner is the wife of deceased Tirupal to whom an extent of Ac.0-04 cents bearing Plot No.4 in Sy.No.472 was assigned by granting D-Form Patta. A copy of D-Form Patta is placed on record establishing the same. Thus, Tirupal became owner of the property by virtue of D-Form Patta granted in his favour. However, in the MSM,J WP_20776_2020 8 revenue records, more particularly, in the pattadar adangal for the Fasli 1430, the land to an extent of Ac.2-90 cents in Sy.No.472 is classified as „Government Land‟ and none is in possession of the property, as noted in Column Nos. 12 to 15 of Account No.3 of Gudavalluru Village. The petitioner succeeded the property after the death of her husband - Tirupal. The petitioner being the wife of the deceased Tirupal is also one of the legal heirs and succeeded the property, in view of intestate death of her husband. Thus, the petitioner is one of the legal heirs of the deceased Tirupal, the original beneficiary under the assignment.
Learned counsel for Respondent Nos. 5 to 7 contended that, Tirupal sold the property executing Registered Sale Deed dated 12.03.1991 in favour of Tallapalem Srinivasulu - father of Respondent Nos. 5 & 6. In the Sale deed dated 12.03.1991, a specific „note‟ is mentioned at the end, to the effect that, this land was not assigned to anyone and would not fall within the purview of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977. Based on this statement, the document appears to have been registered by the Registration Department.
Tallapalem Srinivasulu purchased the property and died intestate. Respondent Nos. 5 to 7 who are the legal heirs succeeded the property. When there is an unlawful interference with the possession and enjoyment of their property by the petitioner‟s sons, Respondent Nos. 5 to 7 filed O.S.No.107 of 2020 on the file of Principal Junior Civil Judge, Kavali along with I.A.No.174 of 2020 for grant of interim injunction during pendency of the suit MSM,J WP_20776_2020 9 restraining the respondents thereunder i.e sons of the petitioner (i) Pobbaraju China Malakondaiah and (ii) Pobbaraju Kamalakar, the Court was pleased to grant the following order:
"Perused the records. the petitioner filed documents No.1 Original Register sale deed dated 12.03.1991 in favour of T. Srinivasulu executed by P. Tirupal, No.2. Bunch of House tax receipts, No.3 Electricity Service Connection, No.4 A.P. Housing cooperation pass book, No.5 Electricity receipts, No.6 Death Certificate, No.7 Photo along with compact disk, No.8 Electricity receipt name of Dhanamma, No.9 Legal notice with postal acknowledgment of D1 and D2, No.10 reply notice from defendants, No.11 Encumbrance certificate (online copy), No.12 water bills. Prima facie made out and this is a fit matter to grant ad-interim injunction over the petition schedule property in favour of petitioners. Hence, issuance of urgent notice is dispensed with.
In the result, the petition is allowed by granting ad-interim injunction in favour of petitioners/plaintiffs restraining the respondents and their followers, men from interfering with the peaceful possession and enjoyment of the petitioners over the petition schedule property till 27.08.2020 In the meanwhile issue notice to respondents. The petitioners shall comply under Order 39 R3. Call on 27.08.2020."
Ad-interim injunction was issued by the Trial Court in favour of Respondent Nos. 5 to 7 restraining the respondents i.e. children of the petitioner (i) Pobbaraju China Malakondaiah and (ii) Pobbaraju Kamalakar. The petitioner is not a party to O.S.No.107 of 2020 and I.A.No.174 of 2020. This fact was suppressed by this petitioner while seeking discretionary relief. Similarly, reply to notice dated 09.07.2020 was got issued by (i) Pobbaraju China Malakondaiah (ii) Pobbaraju Kamalakar (iii) Pobbaraju Krishna (iv) Peram Ankulu, claiming right in the property on the ground that the property was assigned to their father, the respondents are not entitled to any right over the property. Copy of notice dated 18.06.2020 got issued by Respondent Nos. 5 to 7 is not placed on record, obviously for different reasons by Respondent Nos. 5 to 7, but based on alleged suppression of facts, Respondent Nos. 5 to 7 sought to dismiss the writ petition.
MSM,J WP_20776_2020 10 As seen from the material on record and from the plea raised by Respondent Nos. 5 to 7, it is clear that, the petitioner - Pobbaraju Laxmamma is not a party to O.S.No.107 of 2020, I.A.No.174 of 2020 and reply to legal notice dated 09.07.2020. Apart from that, the petitioner is the resident of Gudavalur, Boyalavaripalem, Kondapuram Mandal, SPSR Nellore District, whereas, as per cause title of I.A.No.174 of 2020 Pobbaraju China Malakondaiah, the petitioner‟s son is working as a Teacher and residing at Pamuru village, Prakasam District and Pobbaraju Kamalakar is residing at BC Colony, Kondapuram Village and Mandal, SPSR Nellore District. Thus the petitioner - Pobbaraju Laxmamma and her sons are living separately as per the addresses given in the cause title of O.S.No.107 of 2020 writ petition and I.A.No.174 of 2020. Therefore, it can safely be concluded that they are residing at different places, but not together, thereby question of attributing knowledge to this petitioner about pendency of the suit, interlocutory application and reply to legal notice dated 09.07.2020 between her sons and Respondent Nos. 5 to 7 does not arise. If really, she is a party to O.S.No.107 of 2020, I.A.No.174 of 2020 and reply to legal notice dated 09.07.2020 and suppressed the same while seeking relief in the writ petition, such non- disclosure disentitles her to claim discretionary relief in the writ petition for issue of writ of mandamus. When the petitioner is not a party to any of the proceedings and not residing along with her children, it is difficult to attribute any knowledge about pendency of O.S.No.107 of 2020, I.A.No.174 of 2020 and reply to legal notice dated 09.07.2020 between her sons and Respondent Nos. 5 to 7 MSM,J WP_20776_2020 11 and question of suppression does not arise by this petitioner, since no knowledge is attributable to her. Hence, the contention of Respondent Nos. 5 to 7 that the petitioner suppressed material fact while claiming discretionary relief of writ of mandamus is rejected, for the reasons stated above. Accordingly, the point is answered in favour of the petitioner and against the respondents. P O I N T No.2:
The basis for claim of this petitioner is the patta granted in favour of the husband of the petitioner - Tirupal. The patta is subject to conditions contained in the D-Form Patta. According to Condition No.2, the beneficiary shall complete the construction within six/twelve months commencing from December, 1982. According to Condition No.7, the allottee shall not transfer or alienate the land to any person without prior permission from the government. According to Clause No.8, in case the Government intends to cancel the assignment and resume the land, no appeal or revision shall be maintained against the decision of the Government and the possessor/claimant shall not claim compensation for the structure constructed therein or for the development done by the possessor. According to Condition No.9, the allottee shall not sell away the land to any person without prior permission of the Revenue Divisional Officer within the period of 10 years or to let out the land, the Government reserves right to resume the land.
Thus, on grant of patta assigning an extent of 24 ankanams i.e.192 sq.yds in Sy.No.472 of Gudavalluru Village, Kondapuram MSM,J WP_20776_2020 12 Mandal, Nellore District, in favour of Tirupal - husband of this petitioner, subject to the conditions contained in D-Form patta granted. D-Form patta was granted in favour of Tirupal in the year 1982. However, Respondent Nos. 5 to 7 obtained sale deed from the original pattadar - Tirupal on 12.03.1991 i.e. almost after nine years. Strangely, it is mentioned in the document that it is not governed by the provisions of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 under a specific „note‟ and got registered the document with the Sub-Registrar, Vinjamur. Therefore, the original beneficiary - Tirupal violated the terms and conditions of the patta granted in his favour and sold the property by misrepresenting that the land was not assigned and not governed by the provisions of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, since there is a prohibition to sell the property within 10 years without prior permission from Revenue Divisional Officer as per Condition No.9 and in the event of sale of the property or create any interest within the time prescribed, the State shall resume the land in terms of Condition No.9.
Even in the reply to legal notice dated 09.07.2020 placed on record by respondents, it is clear that the property was purchased by father of Respondent Nos. 5 to 6. It is also specifically stated in the said notice that, it was assigned to husband of this petitioner Tirupal. Therefore, the source of title to the property to the vendor of father of Respondent Nos. 5 & 6 is the assignment by granting D-Form patta. But, suppressing this fact, sale deed was obtained and registered with the office of the Sub-Registrar, Vinjamur. When MSM,J WP_20776_2020 13 the assignment was granted in favour of Tirupal - husband of this petitioner by issue of D-Form Patta, it is always subject to the provisions of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.
Section 3 of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, deals with prohibition of transfer of assigned lands, which reads as under:
1. Where before or after the commencement of this Act any land has been assigned by the Government to a landless poor person for purpose of cultivation or as a house-site then, notwithstanding to the contrary in any other law for the time being in force or in the deed to transfer or other document relating to such land, it shall not be transferred and shall be deemed never to have been transferred, and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer.
2. No landless poor person shall transfer any assigned land, and no person shall acquire any assigned land, either by purchase, gift, lease, mortgage, exchange or otherwise.
[(2A) No assignee shall transfer any assigned house site, and no person shall acquire any assigned house site, either by purchase, gift, lease, mortgage, exchange or otherwise, till completion of the period of 20 years from the date of assignment. (2B) Where the assigned House site was alienated by the assignee as on the date of commencement of this Act, such house site shall be regularized in favour of the alienee as a one- time measure.
(2C) The eligible family shall be assigned house site only once in life time.]
3. Any transfer or acquisition made in contravention of the provision of sub-section (1) of sub-section (2) [or subsection (2- A)] shall be deemed to be null and void.
4. The Provisions of this section shall apply to any transaction of the nature referred to in sub-section (2) in execution of a decree MSM,J WP_20776_2020 14 or order of a Civil Court or of any award or order of any other authority.
5. Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house-site on the date of such commencement.
There is a complete ban on transfer of assigned land and the exception under Sub-section (5) has no application to the present facts of the case, for the simple reason that, sale, gift, lease, mortgage exchange of assigned land, if any made by any person in good faith for valuable consideration, being a landless poor person or his transferee prior to commencement of the Act. But, it is not the case of Respondent Nos. 5 to 6 that their father Tallapalem Srinivasulu purchased the land in good faith being a landless poor person prior to commencement of the Act. Therefore, the transfer of the property covered by patta in favour of father of Respondent Nos. 5 & 6 is only a void transaction in view of Sub-section (3) of Section 3 of the Act. Therefore, the transaction made by Tallapalem Srinivasulu - father of Respondent Nos. 5 & 6 under registered sale deed dated 12.03.1991 is void ab initio.
Section 4 of the Act deals with consequences of breach of provisions of Section 3. According to Section 4(1) if in any case, the District Collector or any other officer not below the rank of a Mandal Revenue Officer, authorised by him in this behalf, is satisfied that the provisions of sub-section (1) of Section 3, have been contravened in respect of any assigned land, he may, by order,-
MSM,J WP_20776_2020 15
(a) take possession of the assigned land, after evicting the person in possession in such manner as may be prescribed ; and [(b) (i) reassign the said resumed land, other than those lands/areas as may be notified by the Government from time to time in public interest and for public purpose, to the transferee who purchased the land in good faith and for valuable consideration on or before 29th January, 2007, subject to the condition that he/she is landless poor person and is in occupation of the land by using the said land for agriculture or as house site, as on the date of taking possession by eviction:
Provided that the reassignment in case of transferee shall be limited to only such an extent that the total holding of the re- assignee including any other land held by him/her does not exceed 5.00 Acres dry land or 2 ½ Acres wet land:
Provided further that where the transferee who has purchased the land and got reassignment of it, or his legal heir, transfers the reassigned land, the land shall be resumed for assignment to the other eligible landless poor;
(ii) restore the said assigned land, other than those lands/ areas as may be notified by the Government from time to time in public interest and for public purpose, to the original assignee, subject to the condition that he or she is landless poor person as on the date of restoration for one time; or
(iii) assign to other eligible landless poor person:
Provided that the restoration of land shall be limited to only such an extent that the total holding including any other land held by him/her does not exceed 5.00 Acres dry land or 2 ½ Acres wet land:
Provided further that where the original assignee or his legal heir, after first restoration transfers the assigned land, the land shall be resumed for assignment to the other eligible landless poor:
Provided also that if no eligible landless poor persons are available in the village/area, the resumed land will be utilised for public purpose.
Explanation:- For the purpose of this clause "Public Interest" and "Public Purpose" shall mean and include, the Weaker Section MSM,J WP_20776_2020 16 Housing, Public Utility, Infrastructure Development, Promotion of Industries and Tourism or for any other public purpose.
(c) In the areas which may be notified by Government from time to time, lands resumed under clause 4(a) above, shall be utilized for public purpose.
Taking advantage of Section 4(1)(b)(ii), the petitioner sought the relief in the present writ petition which permits the authorities to restore the said assigned land other than those land/areas as may be notified by the Government from time to time in public interest and for public purpose, to the original assignee, subject to the condition that he or she is landless poor person as on the date of restoration for one time. Therefore, the authorities under the Act are under obligation to restore the land to the original assignee or to the legal heirs if they are landless poor as on the date of restoration for one time.
In the instant case, the petitioner is the wife of the deceased Tirupal, who is a landless poor person and according to this petitioner, she is still living as a landless poor person within the meaning of "landless poor person" under the Act. Therefore, she is entitled to claim restoration of possession in terms of Section 4(1)(b)(ii) of the Act, being a Class-I legal heir of Tirupal along with her children. But, their children are not claiming restoration of possession, since they are parties to O.S.No.107 of 2020 on the file of Principal Junior Civil Judge, Kavali. The petitioner being a „landless poor‟ person and member of Scheduled Caste is entitled to claim benefit under Section 4(1)(b)(ii) of the Act by resuming the land from Respondent Nos. 5 to 7.
MSM,J WP_20776_2020 17 A similar question came up for consideration before High Court of Andhra Pradesh in Letter sent from Plot No.338, Parvant Nagar, Borbanda, Hyderabad and others v. Collector & District Magistrate, Ranga Reddy District at Hyderabad1, where, in the facts of the said case the original assignee sought relief under Section 4(1)(b)(ii), but the Government raised a plea that the petitioners are not entitled to restore the land in view of the amendment of Section 4 by Act No.8 of 2008. However, the amendment came into force from 21.01.1977, whereas, the impugned order was passed on 29.03.2005 for resumption of the land for violation of the conditions. Section 4(1) (a) & (b) of the Act, obligations of taking possession of assigned land after evicting the person in possession to restore the land to the original assignee or his legal heir. However, after resuming the land by Mandal Revenue Officer, the land was not restored to the petitioner. Therefore, a direction was issued to the petitioner to file an appeal for not restoring the possession of the land even after resumption of the land.
In the instant case, resumption proceedings were not initiated by the Tahsildar for contravention of the conditions of patta following procedure under Rule 3 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Rules, 2007 (for short „the Rules‟) and question of restoration does not arise. Therefore, at best, the Tahsildar shall initiate the proceedings for resumption of land strictly adhering to Rule 3 of the Rules by issuing notices in Form-I and Form-II.
1 2008 (5) ALT 313 (D.B) MSM,J WP_20776_2020 18 In view of the law laid down in the above judgment, whenever action under Section 4 of the Act is initiated by the District Collector or authorized officer, the authority is required to issue notices in Form-I and Form-II to the assignee and the transferee from the assignee and restore possession after resuming the land. However, the power of the Tahsildar under Section 4(1) is not mandatory. Since the language employed in Section 4(1) is "may", the expression "may" according to Section 4(1) does not indicate that is a mandatory obligation of the Tahsildar. If the original assignee violated terms of the grant without showing justification for such violation, the authorities would be justified in refusing to restore possession to him of the land originally assigned in his favour (vide Uppu Pindaiah v. Mandal Revenue Officer2). Thus, it is clear from the law laid down by the High Court in the judgment referred above that it is not a mandatory obligation to restore possession to the original assignee or the legal heirs after resumption of the land. But, when once it came to the notice of the State, the Tahsildar/Respondent No.4 ought to have taken steps to resume the land for violation of conditions of patta issued in favour of the husband of this petitioner - Tirupal. Obviously for different reasons, the Tahsildar/Respondent No.4 disown his obligation to discharge his public duty to resume the land after following the procedure prescribed under Rule 3 of the Rules. In any view of the matter, when the Tahsildar/Respondent No.4 and the District Collector/Respondent No.2 are the authorities who are competent to resume the land in terms of Section 4 for violation of terms and 2 1986 (2) APLJ 39 (SN) MSM,J WP_20776_2020 19 conditions of the patta and they shall initiate proceedings. otherwise, it amounts to encouraging the beneficiaries to sell the property being the landless poor and they will remain as landless poor forever and the purchasers will be the ultimate beneficiaries. When the grant is in favour of Tirupal - husband of this petitioner, subject to the compliance of conditions in patta, sale of property in contravention of Condition Nos.7 to 9, the transaction is vitiated by fraud in obtaining registered sale deed, as it was specifically mentioned in the „note‟ that this land was not assigned to anyone and would not fall within the purview of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, thereby, the transaction is null and void. Based on such transaction, filing of O.S.No.107 of 2020 on the file of Principal Junior Civil Judge, Kavali by Respondent Nos. 5 to 7 against the children of this petitioner will not come in the way of Respondent No.2/District Collector and Respondent No.4/Tahsildar to take appropriate action strictly in terms of Section 3 read with Section 4 of the Act and Rule 3 of the Rules. The interim order in I.A.No.174 of 2020 dated 28.07.2020 is not binding either on this petitioner or Respondent Nos. 1 to 4. Hence, Respondent No.2/District Collector and Respondent No.4/Tahsildar are under statutory obligation to initiate proceedings under Section 3 read with Section 4 of the Act and Rule 3 of the Rules and restore the possession, subject to the principle laid down in Uppu Pindaiah v. Mandal Revenue Officer (referred supra).
Learned counsel for Respondent Nos.5 to 7 would contend that, Tirupal - father of this petitioner purchased the property MSM,J WP_20776_2020 20 under registered sale deed as discussed above. But, merely because it was purchased for valuable consideration by Tallapalem Srinivasulu - father of Respondent Nos. 5 & 6, it is not saved by Sub-section (5) of Section 3 and therefore, they will not get title as the very sale transaction is null and void in terms of Sub-section (3) of Section 3 of the Act. Therefore, the contention of learned counsel for Respondent Nos.5 to 7 is hereby rejected.
In view of my foregoing discussion, I find that, it is a fit case to direct Respondent No.2/District Collector and Respondent No.4/Tahsildar to initiate necessary proceedings for resumption of land under Section 3 read with Section 4 of the Act and Rule 3 of the Rules, strictly following the guidelines issued by this Court in Sudalagunta Sugars Limited v. Joint Collector, Chittoor (referred supra) for resumption of land and subject to satisfying the principle laid down by the High Court in down in Uppu Pindaiah v. Mandal Revenue Officer (referred supra), restore the same to the petitioner, if she remains as landless poor, as on the date of restoration, if any. Moreover, restoration of possession is the discretion of Respondent No.2/District Collector and Respondent No.4/Tahsildar and in case, if restoration is not possible and Respondent No.2/District Collector and Respondent No.4/ Tahsildar need not exercise their discretionary power to restore possession of the property, they shall follow the procedure to reassign the same to any eligible landless poor as per Section 4 of the Act.
MSM,J WP_20776_2020 21 In the result, writ petition is allowed, directing Respondent No.2/District Collector and Respondent No.4/Tahsildar to initiate necessary proceedings for resumption of land under Section 3 read with Section 4 of the Act and Rule 3 of the Rules, strictly following the guidelines issued by this Court in Sudalagunta Sugars Limited v. Joint Collector, Chittoor (referred supra) for resumption of land and subject to satisfying the principle laid down by the High Court in down in Uppu Pindaiah v. Mandal Revenue Officer (referred supra), restore the same to the petitioner being the Class-I legal heir of the original assignee Tirupal, if she remains as landless poor, as on the date of restoration, if any, subject to permissibility, in view of the principle laid down by the High Court in down in Uppu Pindaiah v. Mandal Revenue Officer (referred supra). In case, Respondent No.2/District Collector and Respondent No.4/Tahsildar did not exercise their discretionary power to restore possession of the property, they shall follow the procedure to reassign the same to the any eligible landless poor as per Section 4 of the Act.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:01.11.2021 SP