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2023 DIGILAW 531 (AP)

T. Kailash v. State of Andhra Pradesh

2023-03-14

TARLADA RAJASEKHAR RAO

body2023
ORDER : This Writ Petition is filed under Article 226 of the Constitution of India for the following relief:- "To issue an appropriate Writ or Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in highhandedly trying to enter upon the lands of the petitioner to an extent of Ac.1.00 cents in Sy.No.105-15 situated in Chinnapanduru Village, Vardaiahpalem Mandal, Chittoor District, without acquiring the same as illegal, arbitrary, violative of Articles 14, 21 and 300A of the Constitution of India and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and consequently direct the Respondents to follow due process of law and pay compensation as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 if the lands of the petitioners are required for any public purpose and to pass such other order." 2. The present Writ Petition is filed seeking a direction to the respondents herein to pay compensation for the land acquired in Sy.No.105-15 of Chinnapanduru Village, Vardaiahpalem Mandal, on 20.01.2005. It is the case of the petitioner herein that an extent of Ac.1.00 of land was issued in favour of the wife of the petitioner herein and a DKT patta was also issued in her favour and as the wife of the petitioner has left the companion of the petitioner herein and he does not know the whereabouts of the wife of the petitioner herein, he made a representation to the respondents herein to transfer the patta in his name and accordingly, the Tahsildar has issued pattadar pass book in favour of the petitioner herein by deleting the name of the wife of the petitioner herein, viz., T.Desamma. It is further case of the petitioner herein that since mutating the name of the petitioner herein in the revenue records that he is in possession of the property and the said property was acquired by the Andhra Pradesh Industrial Infrastructure Corporation (APIIC) Limited to provide the same to M/s. Apollo Tyres Limited for establishment of Modern and State of Art Tyre Manufacturing Plant. It is the case of the petitioner herein that suddenly the respondents have entered with the JCB and Hitachi vehicles into the lands of the petitioner herein and developed work has taken place and no compensation was paid unless this Court interdicts in favour of the petitioner herein refraining the respondents from illegally entering into the lands and carrying out the land development works, the lands will be lost forever and it would cause irreparable loss and hardship and therefore prayed to direct the respondents herein not to interfere with the possession of the property or else to pay compensation as per the Act 30 of 2013. 3. The Revenue Department has filed counter along with vacate stay petition contending that the Zonal Manager, APIIC, Tirupati, had made a requisition for acquisition of land for establishment of Industrial Park in Chinnapanduru Village of Varadaiahpalem Mandal for an extent of Acs.374.16 cents. In the said acquisition, including the writ scheduled property in survey No.105/15 in an extent of Ac.1.00 was acquired. The then Tahsildar, Varadaiahpalem Mandal, has sent proposals for the ex gratia, vide proceedings Roc.No.A/398/2016 dated 16.05.2016 mentioning the writ schedule land in Sy.No.105/15 in an extent of Ac.1.00 as Assessed Waste Dry Land (AWD). The stand of the respondents is that originally DKT patta was assigned in the name of T.Desamma, wife of Kailash, who is the wife of writ petitioner herein, for an extent of Ac.1.00 in Sy.No.121-15, whereas it was later rounded off the survey number 121/15 and re-write as Sy.No.105/15 in an extent of Ac.1.00 cents and the name of DKT Pattadar as T.Desamma was rounded off and the name of T.Kailash was remain as it was earlier duly added. The then Tahsildar in collusion with the writ petitioner has entered the name of the petitioner herein duly changing the survey No.121-15 and the said change is contrary to Section 3(3) of the Andhra Pradesh Rights in Land and Passbooks Act, 1971 (hereinafter called, ‘the Act’), and Rule 13(2) of the Andhra Pradesh Rights in Land and Pattadar Passbooks Rules, 1989 (hereinafter called, ‘the Rules’), read with G.O.Ms.No.570, Revenue (D.O.A. & R) dated 08.06.1989. 4. 4. It is contended by the learned Government Pleader for Revenue that as per the provisions, the Tahsildar has to obtain prior permission of the higher authorities for the change of the entry in the Record of Rights, and no such permission was obtained by the Tahsildar before changing of the name in favour of the petitioner, the change of name is violation of the provisions of the Act and patta was issued in favour of the wife of the petitioner herein was cancelled and it was resumed as AWD Government land, vide Tahsildar Proceedings No.694/2015/15 dated 25.05.2015 and a statement was recorded by the Revenue Inspector from T.Desamma, in whose favour the DKT patta was issued, as per the statement of T.Desamma that she has left the companion of the petitioner herein long back approximately 9 to 10 years back from the date of recording statement and both are re-married and the are living separately with their respective families and she further stated that since the date of DKT patta, she has not brought the land under cultivation due to financial problems and she came to know about the change of DKT patta in favour of the petitioner herein recently and the petitioner has no right over the said land. 5. This Court, vide order dated 01.10.2018, has granted interim direction to the respondents to ensure that no development activity is carried out on the lands of the petitioner to an extent of Ac.1.00 in Sy.No.105/15 and the said order is being hurdle for the development and therefore, prayed to vacate the interim order and consequently, dismiss the Writ Petition. 6. This Court, vide order dated 01.10.2018, has granted interim direction to the respondents to ensure that no development activity is carried out on the lands of the petitioner to an extent of Ac.1.00 in Sy.No.105/15 and the said order is being hurdle for the development and therefore, prayed to vacate the interim order and consequently, dismiss the Writ Petition. 6. The 5th respondent filed counter and would contend that the APIIC is an undertaking wholly by the Government of Andhra Pradesh and it is a company registered under the Companies Act, 1956 and the APIIC has deposited an amount of Rs.14,62,50,000/- towards payment of ex gratia to the assignees for an extent of Acs.356.96 cents and the Government has alienated the land in favour of APIIC, vide G.O.Ms.No.337, dated 27.07.2017, and the Government has issued orders vide G.O.Ms.No.136, dated 16.10.2017 to APIIC for allotment of land to an extent of Acs.200.00 cents in favour of M/s. Apollo Tyres Limited for establishment of Modern and State of Art Tyre Manufacturing Plant with an investment of Rs.1200 crores and to generate direct employment about 600 members at Chinnapanduru village of Varadaiahpalem Mandal, Chittoor District, and eventually, it is stated that there are no merits in the Writ Petition and prayed to dismiss the Writ Petition. 7. Learned counsel for the petitioner would contend that under Section 3(3) of the Act, on the application filed by the affected party within one year, on enquiry, the officer concerned rectify the records in accordance with law and such rectification is subject to Section 9 of the Act and this provision is not applicable to the present facts of the case, as no affected party was not made any application for rectification and no such enquiry was conducted. He would further contend that Rule 13(2) of the Rules would show that the power is conferred on the Mandal Revenue Officer, Revenue Divisional Officer, Deputy Collector to revise the entries in confirmed Record of Rights subject to certain conditions. The condition is that no revision can be made without obtaining permission of higher authorities, if the entry in the records was made or confirmed by an officer of the same rank. 8. The condition is that no revision can be made without obtaining permission of higher authorities, if the entry in the records was made or confirmed by an officer of the same rank. 8. It is also the contention of the petitioner herein that no land was resumed from the wife of the petitioner herein as no one knows of whereabouts of T.Desamma, in whose favour, the DKT patta was originally issued since 2005 onwards. When the whereabouts not known about T.Desamma (in whose favour patta was issued), the cancellation of patta is false and it is manipulated for the purpose of the present case. It is also the contention of the petitioner herein that as per the conditions enumerated in the DKT patta, the land is not alienable but it is heritable and the petitioner being the husband of the assignee, the patta devolves upon him, unless and until the respondents establishes that there is a dissolution of marriage between the petitioner and T.Desamma by competent Court, the marriage is subsisting. It is also contended by the petitioner herein that no panchanama was filed in proof of taking possession of the land assigned in the name of T.Desamma, who is the assignee and no enquiry was conducted before passing of the cancellation of patta and resuming the same and it is orally contended that the respondents have not filed the so-called statements recorded from the wife of the petitioner. 9. Relevant provisions of the Act are extracted hereunder: "Section 3(3) of A.P.Rights in Land and Pass Books Act, 1971 ‘Any person affected by an entry in such record of rights may, within a period of one year from date of the notification referred to in subsection (2), apply, for rectification of the entry to such officer as may be prescribed. The said officer may, after such inquiry as may be prescribed, give his decision on such application and direct the rectification of the record of rights in accordance with such decision which shall subject to the provisions of Section 9, be final.’ Rule 13(2) of The Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989 read with G.O.Ms.No.570, Revenue (D.O.A.&R) dt.08.06.1989. The Mandal Revenue Officer, the Revenue Divisional Officer, and the Deputy Collector (Record of Rights) the District Revenue Officer, the Collector of the District, [and any officer designated by the Collector for this purpose] in exercise of their general powers of supervision, shall be competent, suo motu, to test and revise the entries in the confirmed Record of Rights provided that no revision shall be made without giving any person whose name is entered in the Record of Rights, as having any interest in the land in respect of the entry relating to which the alteration is proposed of making a representation in that behalf. Before making any revision an Officer shall obtain the approval of his immediate superior officer. IT the entry, in the Record of Rights was made or confirmed by an Officer of the same rank. 10. Consequences of breach of provisions of Section 3:- (1) If in any case, the District Collector or any other officer not below the rank of a Mandal Revenue Officer authorized 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- (a) take possession of the assigned land, after evicting the person in possession in such manner as may be prescribed. The Government, through G.O.Ms.No.208 Revenue (Assn.-POT) dated 22.02.2007, framed the A.P. Assigned Lands (Prohibition of Transfers) Rules, 2007. Rule 3 has laid down the procedure for eviction of the transferee and taking possession and restoration of assigned lands. Rule 3 reads thus: “3. Procedure for eviction of the Transferee and taking possession and restoration of Assigned Lands:- The District Collector or the Authorized Officer shall, before taking action under clauses (a) and (b) sub-section (1) of Section 4 of the Act, issue notices in Form No.1 and Form II to the persons who have transferred and also to the persons who have acquired any assigned land in contravention of the provisions of subsection (2) of Section 3 of the Act. The notices shall be served by delivering a copy on Transferor and transferee or some adult male member of the family of such transferor or transferee at their usual place of abode or to their authorized agent or by affixing a copy thereof at some conspicuous place of their 19th known place of residence or on some conspicuous part of the assigned land. After the expiry of (fifteen) 15 days specified in the notice, the District Collector or the Authorized Officer shall consider the representation, if any, received with reference to the said notice and pass such order as he thinks fit and proper. If it is held that the provisions of sub-sections (1) and (2) of Section 3 of the Act, have been contravened in respect of any assigned land, a copy of the order shall be communicated to the Village Officer concerned under whose territorial jurisdiction that land is situated for taking possession of the land and thereupon the land shall be disposed of in accordance with the provisions of Section 1 of the Act. The answer to the point under consideration firstly depends on interpretation of Rule 3. Plain and literal construction of Rule 3 leads to the following results: i) The District Collector or authorized officer shall issue notices in Form-I and Form-II before taking action under clauses (a) and (b) of sub section (1) of Section 4 of the Act to persons who have transferred and also to the persons who have acquired any assigned land in contravention of sub section (2) of Section 3 of the Act. ii) The notices are directed to be served by delivering a copy on transferor and transferee or on some adult person etc. as stated therein. iii) The District Collector or authorized officer is under obligation to consider the representation, if any, with reference to the said notice and pass such order as he thinks fit and proper iv) The copy of order is also directed to be communicated to the Village Officer. (emphasis supplied ) 11. as stated therein. iii) The District Collector or authorized officer is under obligation to consider the representation, if any, with reference to the said notice and pass such order as he thinks fit and proper iv) The copy of order is also directed to be communicated to the Village Officer. (emphasis supplied ) 11. With regard to mode of service of notice by affixture it refers to the provisions of C.P.C. whereby a duty is cast upon the Assessing Officer to make a real and substantial effort to find out the person on whom notice has to be served and after using due diligence, if the notice could not be served on the person concerned he has to opt for the alternative mode i.e., service by affixture and in such an event serving officer has to specify the name and address of the person by whom the house or premises was identified and in whose presence the copy of the summon was affixed. These facts should also be verified by an affidavit of the serving officer. Therefore, the initiation of proceedings is invalid in law so as to assume jurisdiction under the BSO. Accordingly, the order passed, consequent to the improper issuance of notice by the Officer, does not have stand in the eye of law. 12. Learned counsel for the petitioner would rely on the judgment of the composite High Court in the case of B.Adinarayana Murthy v. Collector, Ananthapur District and another, (2000) 1 ALD 168 for the proposition that wherein it is held at paragraph Nos.17 and 18 as follows: "17. On this ground alone, I must say, the power of resumption of assigned lands cannot be extended beyond a reasonable period, in any event, not later than five to six years. Even within five to six years when the power has to be exercised, there must be necessary inspection by the authorities on the basis of which a decision to resume the lands be taken preceding a notice to the parties concerned. Section 4(1)(b) of the Act envisages that even if there is violation of certain terms and conditions by the assignee the land shall be restored to the assignee or his legal heirs as the case may be and if there is a violation of the terms of assignment for the second time, it would be open to the authorities to resume the lands. I have, therefore, no hesitation to say that the respondents have no authority to resume the lands after long lapse of more than 34 years on some flimsy grounds. The first question is answered accordingly. 18. However, admittedly, as the lands in question have already been resumed by the respondents for providing house-sites to the weaker sections of the society, such lands cannot be restored to the petitioner and therefore, the petitioner shall only be entitled to get compensation for such resumption." 13. Learned counsel for the petitioner also relied on the order of this Court in W.No.16739 of 2020 dated 24.09.2021 for the proposition that the petitioner is entitled for compensation relying on the judgment of a Constitutional Bench of the composite High Court in the case of LAO-cum-Revenue Divisional Officer v. Mekala Pandu and others, 2004(2) ALD 451 and held that the payment of ex gratia is contrary to law laid down by the Constitutional Bench of the composite High Court in Mekala Pandu’s case (3 supra) and the said order dated 24.09.2021 in W.P.No.16739 of 2020 has been assailed in Writ Appeal No.377 of 2022 and a Division Bench of this Court affirmed the order passed in the Writ Petition. 14. As indicated above, no notice was issued or no enquiry was conducted as contemplated under Section 4 of the Act, and no such proceedings have been filed along with the counter affidavit by the respondents herein. Therefore, mere contentions raised in the counter affidavit does not substantiate that they have followed due procedure of law in evicting the wife of the petitioner herein. At the outset, after summing up of the facts and law as there is no proof was filed that the DKT patta which was issued in favour of the petitioner’s wife was cancelled under due procedure of law, therefore, the Writ Petition filed for the relief for payment of compensation, the petitioner is entitled. 15. For the aforesaid reasons, the petitioner is entitled for compensation and the respondents are hereby directed to initiate compensation proceedings in view of Act 30 of 2013 and the respondents are directed to pass appropriate orders within a period of three months from the date of receipt of a copy of this order. 16. With the above directions, this Writ Petition is disposed of. There shall be no order as to costs of the Writ Petition. 16. With the above directions, this Writ Petition is disposed of. There shall be no order as to costs of the Writ Petition. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.