the District Collector or any other Officer not below the rank of Mandal Revenue Officer authorised by him is competent to take possession of the assigned land after evicting the person in possession and restore the assigned land to the original assignee or his legal heir,where it is reasonably practicable to restore the land to such assignee or his legal heir. Where it is not reasonably practicable to restore the land to such assignee or legal heir, the land should be resumed to the Government for assignment to landless poor persons. Since it is admitted by the petitioner that he is not in possession and enjoyment of the land in question as on today and moreover the proceedings of the 1st respondent shows that the respondents 3 and 4 are in possession of the land in question, their possession should not be disturbed except in accordance with law. Writ Petition is accordingly disposed of. No costs.


THE HON'BLE Ms. JUSTICE G.ROHINI    
Writ Petition No. 17416 of 2010

08-10-2010

B.Mani, Chittoor District.

The Government of Andhra Pradesh,
Chittoor District and another.

COUNSEL FOR THE PETITIONER: Mr. S.V.Muni Reddy        

Counsel for the Respondents1 and 2 : Govt. Pleader for Assignment
Counsel for the Respondent No.3 : Mr. V.Jagapathi

:ORDER:

        The petitioner herein claims to be landless poor person.  It is stated
that his father by name Bangaraiah @ Bangarugan was assigned Ac.1.00 cents of
land situated in Sy.No.1451/5 and Ac.0.25 cents in Sy.No.1441/10 totaling
Ac.1.25 cents in Vinobhanagar Village, Satyavedu Taluk, Nagulapuram Mandal vide
DKT patta No.37/4/1383 dated 22.07.1972.  It is stated that the petitioner's
father made the said land fit for cultivation and continued in possession till
his death and thereafter the petitioner continued in possession and enjoyment of
the same.  Alleging that the 3rd respondent herein had encroached upon the land
in question highhandedly and obtained pattadar pass book and title deed in her
favour, the petitioner made a complaint dated 03.12.2008 before the 2nd
respondent herein requesting for restoration of the land.  As the 2nd respondent
failed to take any action, the petitioner made a detailed representation dated
20.03.2010 before the District Collector, Chittoor.  Having considered the same,
the 1st respondent by order dated 07.05.2010 directed the 2nd respondent to take
action as per the provisions of the Andhra Pradesh Assigned Lands (Prohibition
of Transfers) Act, 1977 (for short the Act 9 of 1977).  Thereafter, the 2nd
respondent issued a notice calling upon the petitioner to show cause as to why
the D-form patta granted to him should not be cancelled.  Aggrieved by the same,
the present writ petition is filed contending inter alia that the impugned show
cause notice issued by the 2nd respondent was without jurisdiction apart from
being contrary to the 1st respondent's order dated 07.05.2010.
        The 3rd respondent filed a counter affidavit stating that the land in
question was sold by the petitioner's father to the husband of the 3rd
respondent under sale deed dated 11.03.1976.  It is stated that the 3rd
respondent's husband was put in possession and since then he continued in
possession and enjoyment of the same.  In the year 1981, when the petitioner's
father and mother started interfering with the possession and enjoyment of the
said land, the 3rd respondent's husband filed O.S.No.16 of 1981 on the file of
the Court of the Junior Civil Judge, Satyavedu, Chittoor District for permanent
injunction to which the petitioner was also impleaded as defendant No.3.  After
the receipt of summons, the petitioner and his parents had compromised the
matter out of Court and a compromise memo duly signed by them was filed in the
suit.  Basing on the said compromise memo, O.S.No.16 of 1981 was decreed  
granting permanent injunction against the defendants.  The said judgment and
decree dated 19.03.1982 in O.S.No.16 of 1981 became final.  It is also stated
that the 2nd respondent after conducting necessary enquiry granted pattadar pass
book and title deeds in favour of the 3rd respondent vide patta No.667 and Katha
No.254670 duly counter signed by the Revenue Divisional Officer, Chittoor.
Again in the year 2009, the petitioner started interfering with the possession
and enjoyment of the lands in question and therefore, the 3rd respondent was
constrained to file O.S.NO.91 of 2009 in the Court of the Junior Civil Judge,
Satyavedu, Chittoor District for permanent injunction.  The said suit is pending
and by order dated 29.10.2009 in I.A.No.273 of 2009, status quo was directed to
be maintained.  Suppressing all the said facts, the writ petitioner made a
representation before the 1st respondent on 20.03.2010 claiming that D.K. patta
granted to his father was subsisting.  As a matter of fact, the petitioner's
father had alienated the assigned land long back in the year 1976 much prior to
the enactment of Act 9 of 1977 and therefore, the 3rd respondent is entitled to
the benefit of Section 3 (5) of Act 9 of 1977 as the 3rd respondent's husband
was a landless poor person and had purchased the assigned lands for valid
consideration in good faith.  Thus, it is contended that the writ petition is
misconceived and it is filed as a counter blast to the civil suit filed by the
3rd respondent in which an interim order of status quo is in operation.
        I have heard the learned counsel for both the parties and perused the
material available on record.
        A perusal of the 1st respondent's order dated 07.05.2010 shows that the
writ petitioner had made a representation for restoration of the land in
question stating that the same was assigned in favour of his father in the year
1972 and that the 3rd respondent had illegally encroached upon the same.  Having
made the necessary enquiry, it was found by the 1st respondent that though the
land in question was assigned to the petitioner's father on 22.07.1972, the same
was alienated in favour of the 3rd respondent's husband and one Kilashaiah by
way of agreement of sale and that the purchasers are in possession and enjoyment
of the same for the past 30 years.  It was also found that the petitioner had
never cultivated the land and the land was not in his possession.   Accordingly,
the 1st respondent had directed the 2nd respondent to take action as per the
provisions of the Act 9 of 1977.
        The Act 9 of 1977 has been enacted to prohibit transfers of lands assigned
to landless poor persons.  The said Act came into force on 22.01.1977.  Section
3(1) of the Act provides that any land assigned by the Government to landless
poor person either before or after commencement of Act shall not be transferred
and no right or title in such assigned land shall vest in any person acquiring
the land by such transfer.  Sub-section (3) made it clear that any transfer or
acquisition in contravention of the above said prohibition shall be deemed to be
null and void.  However, as per sub-section (5) of Section 3, the prohibition
shall not apply to assigned land which was purchased by a landless poor person
in good faith and for valuable consideration from the original assignee prior to
the commencement of the said Act and which is in possession of such person on
the date of such commencement.    The consequences of transfer in contravention
of the prohibition under Section 3 of the Act are provided under Section 4,
which reads as under:
4. Consequences of breach 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) authorised by him in this behalf, is
satisfied that the provisions of sub-section (1) of Section3, 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; and  
(b)       restore the assigned land to the original assignee or his legal heir,
or where it is not reasonably practicable to restore the land to such assignee
or legal heir, resume the assigned land to Government for assignment to landless
poor persons in accordance with the rules for the time being in force;
Provided that the assigned land shall not be so restored to the original
assignee or his legal heir more than once, and in case the original assignee or
his legal heir transfers the assigned land again after such restoration.  It
shall e resumed to the Government for assignment to any other landless poor
person.

        As could be seen, the District Collector or any other Officer not below
the rank of Mandal Revenue Officer authorised by him is competent to take
possession of the assigned land after evicting the person in possession and
restore the assigned land to the original assignee or his legal heir,where it is
reasonably practicable to restore the land to such assignee or his legal heir.
Where it is not reasonably practicable to restore the land to such assignee or
legal heir, the land should be resumed to the Government for assignment to
landless poor persons.
It is apparent that the power conferred under Section 4 for resumption of the
assigned land is entirely different from the cancellation of the
assignment/patta. In G.Munilakshmamma v. the District Collector, Chittoor
District1 it was held that the power to cancel the power under paragraph 18 of
the Board Standing Order 15 has to be exercised by the District Collector on the
ground of suppression of material facts and misrepresentation of facts.  It is
also held that the Mandal Revenue Officer has no power to cancel the patta for
breach of conditions of the D-form patta.
        Admittedly, the enquiry ordered by the 1st respondent in the proceedings
dated 07.05.2010 is an enquiry under the provisions of Act 9 of 1977.   In the
circumstances, the 2nd respondent is expected to conduct the necessary enquiry
as contemplated under Sections 3 and 4 of Act 9 of 1977 following the procedure
prescribed in the Rules.    However, strangely, the 2nd respondent had issued
the impugned notice for cancellation of the patta, which is beyond the scope of
Act 9 of 1977.
Thus, it is clear that the impugned notice is not in terms of the directions
issued by the 1st  respondent dated 07.05.2010 and therefore, the same is hereby
set aside and the writ petition is disposed of with a direction to the 2nd
respondent to make an enquiry under the provisions of Act 9 of 1977 as directed
by the 1st respondent vide proceedings dated 07.05.2010.   Since it is admitted
by the petitioner that he is not in possession and enjoyment of the land in
question as on today and moreover the proceedings of the 1st respondent shows 
that the respondents 3 and 4 are in possession of the land in question, their
possession should not be disturbed except in accordance with law.
Writ Petition is accordingly disposed of.  No costs.

?1 1999 (1) ALT 617

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