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Wednesday, July 6, 2016

Questioning the jurisdiction of the Tahsildar, in cancelling the DKT patta granted in favour of Chakala Guravaiah = cancellation and resumption are two different aspects and that the Tahsildar cannot exercise the power of cancellation, cannot be accepted for the reason that the power of resumption which is given to the Tahsildar will have to be exercised only after cancellation. If the Joint Collector exercising his powers under paragraph 18 of Board Standing Order 15 cancels the patta for the reasons stated therein, he has to order resumption of the said land by the Tahsildar after cancelling the patta. That by itself does not mean that in every case the Collector alone has to cancel the patta and the work of the Tahsildar is only to resume the land. On the other hand, paragraph 12 of Board Standing Order 15 confers power on Tahsildar and Deputy Tahsildar, in independent charge who are the assigning authorities, shall be the authorities competent, to order resumption in case of a breach of the conditions of grant, which would be after cancellation of patta. (1) whenever a person is aggrieved by an order passed by Mandal Revenue Officer (MRO) under Section 4(1) of the Act 1977 resuming the land to the Government, an appeal would lie to the Revenue Divisional Officer (RDO) having jurisdiction; (2) If an adverse order is passed by the appellate authority, aggrieved person can prefer further appeal to the District Collector (Joint Collector) within ninety days from the date of receipt of copy of the order of the first appellate authority; and (3) Even after the order of the Joint Collector, an aggrieved person can make an application to the Government for revision, where the Government can examine the regularity, correctness, legality or propriety of the order passed by the Joint Collector or by any other authority subordinate to the Government. In a case where there is a violation of Section 3 (1) of the Act, 1977, and in case of any action is being initiated by an officer not below the rank of Mandal Revenue Officer, for violating the provisions of sub-section (1) of Section 3 of the Act, 1977, an appeal would lie before the Revenue Divisional Officer under Section 4-A of the Act, 1977, and any person aggrieved by order passed by Revenue Divisional Officer may within ninety days file another appeal before the District Collector. If the argument of the learned counsel for the petitioners, namely, that it is only the District Collector alone who is competent to cancel the patta irrespective of the reason is to be accepted, then paragraph (12) and (15) of Board Standing Order 15 will be nugatory and the provisions of appeals and revisions which are there in the statute book will be of no use. Definitely that would not have been the intention of the legislatures. From the analysis made, it is clear that the Collector will get jurisdiction to cancel the patta only if it is found that it was grossly inequitable or was passed under a mistake of fact or owing to misrepresentation or fraud or in excess of the limits of the authority delegated to the assigning officer under Board Standing Order 15 or that there was an irregularity in the procedure. In all other circumstances, the Mandal Revenue Officer alone is the appropriate authority to cancel the patta and resume the land.

THE HONBLE SRI JUSTICE C.PRAVEEN KUMAR          

WRIT PETITION No. 33579 of 2011  

11-02-2016

Smt. B.Jayaprada and another.... PETITIONERS  
               
State of Andhra Pradesh, rep.by  Its Principal Secretary, Revenue Dept.,
Secretariat, Hyderabad and 3 others...RESPONDENTS    

Counsel for Petitioners:Sri M/s. K.V.Subrahmanya Narusu
                                               
Counsel for Respondents:G.P. for Assignment.

<GIST :

>HEAD NOTE :  

? Cases referred :
  (2011 )1 ALT 334
2 (1991) 1 ALT 617


HONBLE SRI JUSTICE C. PRAVEEN KUMAR        
                       
WRIT PETITION No. 33579 of 2011  

ORDER:

      Heard the learned counsel for the petitioners and the
learned Government Pleader for Revenue (AP).
      Questioning the jurisdiction of the Tahsildar, in cancelling
the DKT patta granted in favour of Chakala Guravaiah, the present
writ petition is filed.
      The averments in the affidavit filed in support of the writ
petition are as under:
      The first petitioner claims himself to be the absolute owner
and possessor of land admeasuring Ac.0.66 cents in Sy.No.490 of
Kalavagunta Village, Penumuru Mandal, Chittoor District, having
purchased the same through a registered sale deed dated
19.02.2003 from Smt. Sarala, who inturn purchased the same from
Smt. Saraswathi.  It is also claimed that the second petitioner
purchased Ac.0.94 cents in Sy.No.490 of Kalavagunta Village,
Penumuru Mandal, Chittoor District, through a registered sale
deed dated 17.08.2001 from R.Sahadevan, R.Janakiraman and  
R.Namasivayan, who were the successors of Rangaswamy    
Mudaliyar, who inturn purchased the said property through
registered sale deeds dated 15.12.1967 and 30.03.2001.  From the
date of purchase, the petitioners claims to be in peaceful
possession and enjoyment over their respective property.  While
things stood thus, the Tahsildar, Penumuru Mandal, issued the
impugned order stating that a representation came to be
submitted by Chergaiah and others of Eguva Punepalli Village,
with regard to the pathway and enquiries made by the Village
Revenue Officer and Additional Revenue Inspector, Penumuru,
revealed that the original assignee has violated the conditions of
patta by alienating part of the assigned land in favour of third
parties.  It is averred that the said land was not under cultivation
and is also vacant with erected stone fencing.  A notice is said to
have been issued to the petitioners and also to the original
assignees, but the petitioners failed to attend the enquiry.
Having regard to the material collected, the D.K.T. patta granted
in favour of Chakala Guravaiah (original assignee) was cancelled
and the land was resumed to the Government.  Challenging the
said action on the ground of jurisdiction the present writ petition
is filed.
      A counter came to be filed by the respondents disputing the
averments made in the affidavit filed in support of the writ
petition.  It is stated that under Board Standing Orders, the
Tahsildar alone is competent to cancel the pattas if there is a
violation of condition of the patta and the Collector gets
jurisdiction to cancel the patta only when there is a suppression of
material facts and misrepresentation of facts.  In any event, it is
stated that the petitioners have a remedy of appeal under the
provisions of the Andhra Pradesh Assigned Lands (Prohibition of
Transfers) Act, 1977 (for short the Act, 1977), which the
petitioners should have availed before approaching this Court.
      Learned counsel for the petitioners mainly submits that the
Tahsildar has no jurisdiction to cancel the D.K.T. patta granted in
favour of the assignees and that the Collector alone has the power
to cancel the patta.  He further submits that since the assignment
patta was in the year 1940, the original assignee can transfer the
land in favour of third parties as the restriction of alienation came
into force much later.  Relying upon the judgment of this Court in
B.Mani v. Government of Andhra Pradesh , learned counsel for
the petitioners strenuously contends that the Tahsildar has no
power to cancel the patta for breach of conditions of the patta.
      In order to appreciate the same, it would be useful to refer
to certain provisions of Act, 1977, and Board Standing Orders.
      Section 3 of the Act, 1977, reads as under:
3. Prohibition of Transfer of assigned lands: (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 anything to
the contrary in any other law for the time being in force or in
the deed of 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.
(3) Any transfer or acquisition made in contravention of the
provisions of sub-section (1) or sub-section (2) 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 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.
      Section 3 (1) of the Act provides that any land assigned by
the Government to a landless poor person shall not be transferred
to any person either before or after commencement of the Act.
Sub-section (3) of Section 3 makes it clear that any transfer or
acquisition in contravention of the above said prohibition shall be
deemed to be null and void.  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 Act and which is in possession of such
person on the date of such commencement.  
      Section 4 of the Act, 1977, deals with consequences of
breach of provisions of Section 3, which reads as under:
4. 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; 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 be resumed to the
Government for assignment to any other landless poor person.
      From the material available on record, it is clear that the
land was originally assigned in favour of Chakala Guravaiah, who
later sold the same to various persons through registered sale
deeds for valuable consideration.  Having noticed that the original
assignee violated the conditions of patta by alienation, the
Tahsildar after giving notice to the petitioners and after holding
an enquiry resumed the land by cancelling the patta.    The
impugned order also reveals that the transferees of the above said
land ie. writ petitioners herein are wealthy pattadars and are
above the poverty line, hence, the benefit of Section 3 (5) of the
Act would not be available to the petitioners.
      As stated earlier, the learned counsel for the petitioners
relied upon the judgment in B.Mani case (1 supra) contending
that the Tahsildar has no power to cancel the patta.  Since the
judgment in B.Mani Case (1 supra) is based on the earlier
judgment of this Court in G.Munilakshmamma v. The District
Collector , it would be appropriate to refer the judgment of
G.Munilakshmamma case (2 supra) in detail. It was a case where
the petitioner was cultivating an extent of Ac.2.67 cents in Survey
No.50/2 and Ac.2.30 cents in Sy.No.50/3 of Kagathi Village, which
were Government waste lands.  Though he was cultivating the
lands as Sivaijamdar from 1978, but D-form patta was granted in
his favour on 11.12.1989.  A show cause notice came to be issued
by the Mandal Revenue Officer to show-cause as to why patta
granted in his favour should not be cancelled.  The correctness of
the show-cause notice was questioned before the High Court in
that case.   In the said case, the patta was sought to be cancelled
on the ground of suppression of material facts and mis-
representation of facts.  Referring to paragraph 18 of the Board
Standing Order 15, the learned Single Judge of this Court held that
the Collector alone has got the power to cancel the patta and the
Mandal Revenue Officer has no power to do so for suppression of
material facts and mis-representation of facts.   It would be
relevant to extract the relevant para of G.Munilakshmamma case
(2 supra), which is as under:
In the instant case, the patta is sought to be cancelled on the
ground of suppression of material facts and misrepresentation
of facts.  On these grounds, in my view, the Collector has the
power to cancel the patta under paragraph 18 of the board
Standing Order 15.  The Mandal Revenue Officer has no power
to do so.
      The said judgment, in my view, may not apply to the case
on hand, as the cancellation of patta in the instant case was not
on the ground of mistake of fact or owing to fraud or
misrepresentation.
      Therefore, the argument of the learned counsel for the
petitioners that cancellation and resumption are two different
aspects and that the Tahsildar cannot exercise the power of
cancellation, cannot be accepted for the reason that the power of
resumption which is given to the Tahsildar will have to be
exercised only after cancellation.  If the Joint Collector exercising
his powers under paragraph 18 of Board Standing Order 15 cancels 
the patta for the reasons stated therein, he has to order
resumption of the said land by the Tahsildar after cancelling the
patta.  That by itself does not mean that in every case the
Collector alone has to cancel the patta and the work of the
Tahsildar is only to resume the land. On the other hand,
paragraph 12 of Board Standing Order 15 confers power on
Tahsildar and Deputy Tahsildar, in independent charge who are
the assigning authorities, shall be the authorities competent, to
order resumption in case of a breach of the conditions of grant,
which would be after cancellation of patta.
      Further, Paragraph 15 of Board Standing Order 15 deals with
appeals to be filed against the orders of Tahsildar or from the
order of the Divisional Officer.  It would also be appropriate to
refer to Sections 4-A and 4-B (1) of the Act, 1977, which reads as
under:
4-A. Appeal:-(1) Any person aggrieved by an order passed by the
Mandal Revenue Officer under Sub-section (1) of Section 4,
may, within ninety days from the date of receipt by him of such
order appeal to the Revenue Divisional Officer.
(2) Any person aggrieved by an order passed by the Revenue
Divisional Officer under Sub-section (1) of Section 4, may,
within ninety days from the date of receipt by him of such order
appeal to the District Collector.
4-B. Revision:-(1) The District Collector may in respect of any
proceeding not being a proceeding covered by Sub-section (2) of
Section 4-A on an application made to him and the Government
may in respect of any proceedings either suo motu or on an
application made to them, call for and examine the record of
any officer subordinate to him or them to satisfy himself or
themselves as to the regularity of such proceeding or the
correctness, legality or propriety of any decision or order taken
or passed therein, and if in any case, it appears to the District
Collector or as the case may be to the Government that any
such decision or order should be modified, annulled, reversed or
remitted for reconsideration, they may pass orders accordingly:
Provided that every application for the exercise of the powers
under this section shall be preferred within ninety days from
the date on which the proceeding, decision or order to which
the application relates was communicated to the applicant.
      A plain reading of the above two provisions would show that
(1) whenever a person is aggrieved by an order passed by Mandal
Revenue Officer (MRO) under Section 4(1) of the Act 1977
resuming the land to the Government, an appeal would lie to the
Revenue Divisional Officer (RDO) having jurisdiction; (2) If an
adverse order is passed by the appellate authority, aggrieved
person can prefer further appeal to the District Collector (Joint
Collector) within ninety days from the date of receipt of copy of
the order of the first appellate authority; and (3) Even after the
order of the Joint Collector, an aggrieved person can make an
application to the Government for revision, where the
Government can examine the regularity, correctness, legality or
propriety of the order passed by the Joint Collector or by any
other authority subordinate to the Government.
      In a case where there is a violation of Section 3 (1) of the
Act, 1977, and in case of any action is being initiated by an officer
not below the rank of Mandal Revenue Officer, for violating the
provisions of sub-section (1) of Section 3 of the Act, 1977, an
appeal would lie before the Revenue Divisional Officer under
Section 4-A of the Act, 1977, and any person aggrieved by order
passed by Revenue Divisional Officer may within ninety days file
another appeal before the District Collector.  If the argument of
the learned counsel for the petitioners, namely, that it is only the
District Collector alone who is competent to cancel the patta
irrespective of the reason is to be accepted, then paragraph (12)
and (15) of Board Standing Order 15 will be nugatory and the
provisions of appeals and revisions which are there in the statute
book will be of no use.  Definitely that would not have been the
intention of the legislatures.
      From the analysis made, it is clear that the Collector will
get jurisdiction to cancel the patta only if it is found that it was
grossly inequitable or was passed under a mistake of fact or owing
to misrepresentation or fraud or in excess of the limits of the
authority delegated to the assigning officer under Board Standing
Order 15 or that there was an irregularity in the procedure.  In all
other circumstances, the Mandal Revenue Officer alone is the
appropriate authority to cancel the patta and resume the land.
Therefore, the argument of the learned counsel for the
petitioners that the Tahsildar has no jurisdiction to cancel the
patta for violation of conditions of patta cannot be accepted.  For
the foregoing, I see no merits in the writ petition and the same is
liable to be rejected, giving liberty to the petitioners to avail the
remedies available under law.
      Accordingly, the writ petition is dismissed.  There shall be
no order as to costs.  Consequently, miscellaneous petitions, if
any, pending in this Writ Petition shall stand closed.
________________________  
JUSTICE C. PRAVEEN KUMAR      
11.02.2016

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