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2021 DIGILAW 220 (TS)

Sumathi Mandal, W/o. Dulal Mandal v. State of Telangana, rep. , by its Principal Secretary, Revenue Department

2021-07-06

P.NAVEEN RAO

body2021
ORDER : The Prayer sought in the writ petition reads as under : “… to issue an order or direction or Writ more particularly one in the nature of Writ or Mandamus declaring the action of the Respondents in not considering the Petitioner’s representation dated 20.02.2018 for fresh enquiry and assignment of subject land and also issuing the impugned eviction Order dated 06.04.2021 passed in B/530/2021 on the file of the Tahsildar, Kaghaz Nagar, directing the Petitioner to vacate the subject land bearing Sy.No.5/130 measuring extent Ac.1.00 cents within a week days as illegal, arbitrary, against the provisions of the Law and practice and also against the Principles of natural justice and Consequently set aside the impugned order dated 06.04.2021 passed in Rc.No.B/530/2021 on the file of the Tahsildar, Kaghaz Nagar and pass such other order or orders may deem fit and proper in the circumstances of the case.” 2. Heard Sri Bhanu Murthy Bala, learned counsel for the petitioner, learned Assistant Government Pleader for Revenue. 3. Shorn of details, from the averments in the affidavit filed in support of the writ petition and the material placed on record, briefly noted, the facts are as under : Late Jogesh Bawdi was assigned land to an extent of Ac.1.00 in Survey No.5/130 of Nazrul Nagar village in Kagaznagar Mandal, Komurambheen Asifabad District. This land was claimed to have been purchased by the petitioner by way of an unregistered sale deed; entered into possession and constructed a small dwelling unit. Smt. Lakkirani Bawdi @ Smt. Laxmi Rani Haldar, daughter of late Jogesh Bawdi filed application before the Tahsildar to evict the illegal encroachers from the assigned land and to hand over possession to her. Based on the said application, proceedings were initiated under the Telangana Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977) and notices were served on the petitioner and the complainant. After affording due opportunity, the Tahsildar, Kaghaznagar, passed orders on 24.11.2015 resuming the land to an extent of Ac.1.00 into the Government custody from the petitioner holding that petitioner was an encroacher of the assigned land. He has issued directions to the Mandal Revenue Inspector and the Village Revenue Officer, Nazrulnagar, to take possession of land to an extent of Ac.1.00 into the Government custody and to submit proposals for assignment of the same to the landless eligible women beneficiary in the village with immediate effect. He has issued directions to the Mandal Revenue Inspector and the Village Revenue Officer, Nazrulnagar, to take possession of land to an extent of Ac.1.00 into the Government custody and to submit proposals for assignment of the same to the landless eligible women beneficiary in the village with immediate effect. 4. Aggrieved by this decision, Smt. Laxmi Rani Haldar preferred appeal to the Revenue Divisional Officer, Kaghaznagar, in Case No.E/96/2016. It is to be noted that though the petitioner did not prefer appeal against the decision of the Tahsildar, but he was afforded opportunity of hearing in the appeal preferred by Smt. Laxmi Rani Haldar. On elaborate consideration of the respective submissions and the report of the Tahsildar, the Revenue Divisional Officer held that no material was shown to justify the claim of Smt. Laxmi Rani Haldar succeeding to the land assigned to late Jogesh Bawdi. The Revenue Divisional Officer has also held that the alleged purchase made by the petitioner on an assigned land was ex facie illegal and therefore affirmed the decision of the Tahsildar. The decision of the appellate authority has become final. 5. Based on the said decision, final notice was issued on 06.04.2021 directing the petitioner to vacate the subject land. In this writ petition, petitioner is challenging the said notice. The notice is challenged primarily on the ground that no reasonable opportunity was afforded to the petitioner before issuing such notice and straight away petitioner cannot be thrown out of the land in her occupation without following the due process of law. 6. If the notice is looked into in isolation, at the first blush the contention urged by learned counsel for the petitioner sounds very attractive and requires acceptance. But, by lifting this cloud on plea of denial of opportunity of hearing and looking into the decision of the Tahsildar dated 24.11.2015 and order of the Revenue Divisional Officer, dated 13.03.2017, it is crystal clear that the impugned notice is in continuation of the decisions already made, which have become final. Thus, it is not a case of where petitioner is sought to be dispossessed for the first time without following the due process. As noticed above, the Tahsildar in his order dated 24.11.2015 held that the alleged purchase was not valid and petitioner was an encroacher of the assigned land. The said decision was considered elaborately and affirmed by the appellate authority. As noticed above, the Tahsildar in his order dated 24.11.2015 held that the alleged purchase was not valid and petitioner was an encroacher of the assigned land. The said decision was considered elaborately and affirmed by the appellate authority. As long as these decisions are staring at the petitioner, it is no more open for the petitioner to contend that she cannot be evicted from the subject property. 7. Learned counsel for the petitioner sought to contend that petitioner is also a landless poor person and therefore in accordance with the provisions contained in Section 3 (5) of the Telangana Assigned Lands (Prohibition of Transfers) Act, 1977, she should have been considered for reassignment of the very same land. 8. It is seen from the orders of the Tahsildar and the Revenue Divisional Officer, petitioner has raised the plea that, she was a bona fide purchaser, has been in possession for a very long time, constructed a house and has been living therein and the family belongs to landless poor category, but both authorities were not inclined to grant the equitable relief of reassignment in exercise of power vested in them under Section 3 (5) of the Act, 1977. 9. Once it is established that the assignment conditions are violated by the assignee, the assignee’s patta is liable to be cancelled and land is liable to be resumed. As per the assignment conditions and the provisions of the Act, 1977, an assignee is not entitled to alienate the land under any circumstance. Thus, alienation of the land to a third party amounts to violation of terms of assignment. 10. Once a decision is made holding that the assignment patta conditions are violated and land is resumed. Section 3 (5) of the Act, 1977 comes into play. Section 3 (5) of the Act, 1977 is an exception carved out to the main provision. At that stage, if an application is made by a person claiming to have purchased the land bona fidely without knowing that it was an assigned land, is in occupation of the land and qualifies to be a landless poor person, the Tahsildar may consider the request of the person to grant reassignment. It is only an enabling provision vesting discretion in the competent authority to grant reassignment. It is only an enabling provision vesting discretion in the competent authority to grant reassignment. No manner of right is vested in the purchaser of assigned land to grant reassignment by taking recourse to Section 3(5) of the Act, 1977. It being an exception, its scope is narrow and has to be seen in the over all context of the scheme of the Act, 1977. In the guise of sympathy to alleged purchaser, it cannot subsume the scheme and object of the Act, 1977. Thus, it’s a narrow window of opportunity, whereunder the competent authority may exercise his discretion, having regard to peculiar facts of the case. It is settled principle of law that when statute vests discretion in an authority and authority takes a decision objectively, the writ Court cannot substitute its opinion merely because there is another solution to the issue. As noticed above, it is seen from the orders of the Tahsildar and the Revenue Divisional Officer that a plea was raised before them as a landless poor person for reassignment of the land after it was declared that the assignee and the family members of assignee have violated the terms of assignment, but were not inclined to exercise the discretion to grant reassignment to petitioner. It cannot be said that the discretion was not validly exercised. 11. In the above background, I do not see any error in issuing notice impugned in the writ petition warranting interference. Merely on the ground that petitioner made a representation to the Tahsildar requesting to conduct fresh enquiry is no ground to restrain the authorities from taking further action in accordance with the decisions already made under the Act, 1977. Further, by the representation dated 19.02.2018, petitioner was requesting to conduct a fresh enquiry. Once a decision was made by the Tahsildar, he has no power to undertake review of the decision made. Further, in this case, the appellate authority affirmed the decision of the Tahsildar. Therefore, the order of the Tahsildar stands merged into the order of the higher authority and once order is merged into the order of the higher authority, even otherwise, the Tahsildar cannot undertake review of his decision. 12. For the aforesaid reasons, the writ petition merits no consideration and the same is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed.