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PETITIONER: GOVT.  OF ANDHRA PRADESH & ORS.

       Vs.

RESPONDENT: GUDEPU SAILOO & ORS.

DATE OF JUDGMENT:       28/04/2000

BENCH: D.P.Wadhwa, S.S.Ahmad

JUDGMENT:

S.SAGHIR AHMAD, J.       Leave granted.  On 21.10.1961, each of the respondents was  allotted  an  area  of 7.06 acres  of  Government  land situated  in  village   Manchirevula,  District  Rangareddy, situated  at  a distance of about 10 miles from the city  of Hyderabad in Andhra Pradesh.  This assignment was subject to two conditions, namely, (i) that the land would be used only for  cultivation  and  (ii) that it would not  be  alienated regarding  which  each  one  of the assignees  had  given  a written  undertaking that they would not sell the land under any circumstance without the prior sanction of the Tehsildar and  in case the land was sold, it would revert back to  the Government.  (Learned Senior Counsel, Mr.  M.N.  Rao and Mr. Sudhir  Chandra object to this undertaking being read by  us on  the  ground  that  this was not filed  before  the  High Court).   In exercise of the power conferred by Section  172 of  the  Andhra Pradesh (Telangana Area) Land  Revenue  Act, 1317  F.,  the Government had made THE LAONI RULES, 1950  of which  Rule  19 is quoted below:- "19.  The allottee of  the land  shall  prepare the land for cultivation  within  three years of being placed in possession and commence cultivation of the land thereafter.  The pattadar may be rejected by the order  of  the  Collector  for breach of any  of  the  above conditions:   Provided that he has been served with a notice calling  upon him to comply with the conditions which he has violated  and he fails to comply with it within three months of   the  date  of  service   thereof.   If  land  has  been transferred   in  contravention  of   the  conditions,   the Collector  may eject the transferee." ( Emphasis supplied  ) Permission  to  occupy the Government land is given  on  the prescribed  Form  ’G’.  One of the conditions  contained  in Form  ’G’ is that the "grantee is not empowered to  transfer the  occupancy without the sanction previously obtained from the  Collector".   Under  the   Revised  Assessment  Policy, published  in  Part  II  of  Andhra  Pradesh  Gazette  dated 31.7.1958  (pages 771-773), which again was made in exercise of the powers conferred by Section 172 of the Andhra Pradesh (Telangana  Area) Land Revenue Act, 1317 F., it was provided in  Part VI thereof as under:- "VI.  Terms and conditions of assignment:-  (i)  the assignment of lands shall be free  of market  value;   (ii) lands assigned shall be heritable  but not  alienable;  (iii)lands assigned shall be brought  under cultivation  within three years;  (iv) no land tax shall  be collected for the first three years except for the extent if any,  which  has  already been  brought  under  cultivation. Water  rate  shall,  however, be charged if  the  lands  are

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irrigated with Government water;  and (v) cultivation should be  by  the  assignee or the members of his family  or  with hired labour under the supervision of himself or a member of his  family." Thus, under the original Laoni Rules, 1950  as also  under  the  Revised  Policy  published  in  1958,  the alienation of the assigned land was prohibited.  While under the  Laoni  Rules, 1950, the alienation or transfer  without the previous sanction of the Collector was prohibited, under the  Revised Policy, it was clearly provided that though the assigned  lands  would  be  heritable,  they  would  not  be transferred.   On  14th of August, 1991, the respondents  to whom  the land was assigned, executed a Power of Attorney in favour  of  a builder, M.A.  Baksh, giving him, inter  alia, the  following  powers:-  "5.   To  negotiate,  enter   into agreements for and/or let lease or licence the said property or  any  portion thereof to such person(s) or body  and  for such  consideration  and upon such terms and conditions  and for  such purpose(s) as my said attorney may in his absolute discretion  deem fit.  6.  To negotiate and agree to  and/or to  enter into agreement, to sell/develop/lease/mortgage the said property or to sell, convey, lease, mortgage, assign or to  otherwise  transfer  the said property  or  any  portion thereof to such person(s) or body and for such consideration and  upon such terms and conditions and for such  purpose(s) as the said attorney may in his absolute discretion deem fit and to collect and receive the considerations thereof and to give  a  valid  receipts  therefor.    7.   To  enter   into agreement(s)  to develop the said property by laying  roads, drainage,  water  connections, Electricity  connection  etc. and      or          erecting      individual/multistoreyed, residential/commercial buildings thereon with any person(s), firms,  company/companies  or  society/societies  upon  such terms and conditions as my said attorney may in his absolute discretion  deem  fit." Acting upon the Power  of  Attorney, M.A.   Baksh  applied  to  the Mandal  Revenue  Officer  and obtained  a  Memo dated 23.9.1992 from him that the sale  of land  was  not  hit  by the  provisions  of  Andhra  Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977.  In the meantime,  the Inspector-General of Police, Special Security Force,  Andhra Pradesh, sent a requisition on 12.11.1993  to the  Government  for  acquisition of the  land  situated  in Manchirevula Village, Rejendranagar Mandal for setting up of operational  Headquarters with residential accommodation for the  Police  Academy.   It  was, at  this  stage,  that  the validity   of  the  assignments  made   in  favour  of   the respondents   in   1966   was   examined  and   on   certain irregularities   having  been  noticed   in   making   those assignments,  it  was decided to take action  under  Section 166-B  of  the Andhra Pradesh (Telangana Area) Land  Revenue Act,  1317 Fasli and, therefore, a notice, requiring them to show  cause why the assignment of land made in their  favour in  1961 be not cancelled, was issued to the respondents  on 28.3.1994  by  the  District  Revenue Officer.   It  was  on receipt  of the show cause notice that the respondents filed Writ  Petition No.  9106 of 1994 in the Andhra Pradesh  High Court  challenging  the validity of the notice.   This  Writ Petition  was  disposed  of  by a learned  Single  Judge  on 3.5.1994  by  the following order:- "This writ  petition  is filed  for  a writ of certiorary by calling for the  records relating  to the impugned order dt.  28.3.1994 of the second respondent  and quash the same, by the impugned notice dated 28.3.1994  the  Distt.  Collector Ranga Reddy has  issued  a show  cause  notice  to the petitioner as to why  the  Patta granted  earlier should not be cancelled in view of  certain alleged  contraventions.   However,  it is the case  of  the

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petitioner  that  he  has  not  submitted  his  explanation, instead  furnished  in  this court.  This writ  petition  is premature  as  it  is filed against the show  cause  notice. However, having regard to the facts and circumstances of the case,  I  direct  the petitioner to submit  his  explanation within a period of one week from today and the same shall be considered  by the second respondent.  Pending consideration of   his   explanation,   the   petitioner  shall   not   be dispossessed.   Subject  to  above   the  writ  petition  is disposed  of  at the stage of admission." It may  be  stated that  the  second respondent in the Writ Petition to whom  a direction  was issued to consider the explanation which  was to  be  submitted  by  the   respondents  was  the  District Collector,  Rangareddy  District.  It was he who had  issued the  show  cause  notice dated 28.3.1994.  Pursuant  to  the judgment passed by the High Court, the respondents submitted their  explanations  to  the  show cause  notice  which  was considered  by  the District Revenue Officer and he, by  his order  dated 15.9.1994, held that there was no  irregularity in  the  assignment  of lands to the  respondents.   It  was further  held by him that the respondents were in possession over  the  assigned  lands in pursuance of  the  Certificate granted  to  them  in  Form ‘G’ issued  on  21.10.1961  and, therefore, the assignment was not affected by the subsequent G.O.Ms.  No.1122, dated 29.6.1961 by which the assignment of lands  falling within 10 miles of Hyderabad City was banned. This  order  was  examined by the Collector who was  of  the opinion  that the District Revenue Officer had not  examined certain  vital aspects of the matter and consequently by his order dated 3rd of January, 1995, he suspended the operation of the order dated 15.9.1994, passed by the District Revenue Officer.   This  order was challenged by the respondents  in Writ  Petition  No.484  of  1995.    In  the  meantime,  the Collector  wrote to the Government on 31st of July, 1995  to ratify the action indicated by him in his order dated 3rd of January,  1995.   By order dated 24th of January, 1996,  the Government  ratified  the  Collector’s order  dated  3rd  of January,  1995 and directed him to proceed with the  enquiry and  pass  final  order.  This order of the  Government  was challenged  by the respondents in Writ Petition  No.7221/96. By a common judgment dated 1st of September, 1997, a learned Single  Judge  of  the  High Court  allowed  both  the  Writ Petitions and quashed the order of the Government dated 24th of   January,   1996.   It  may  be  stated  that   in   the counter-affidavit,  filed  on  behalf of the  Government  of Andhra Pradesh (appellants), it was, inter alia, stated that the respondents had alienated the lands in favour of a third person.  They had converted the agricultural lands into non- agricultural lands and had also appointed a General Power of Attorney  in favour of a developer, for developing and  sale of the plots, who converted the lands into residential plots in  the  name and style of "Bakshi Estates".  The  State  of Andhra  Pradesh,  thereafter, filed two appeals  before  the Division  Bench  but the Division Bench took up only one  of the  two  appeals,  namely, Writ Appeal  No.1487/98  and  by judgment  dated  14th of September, 1998, it  dismissed  the said  appeal  and maintained the order of the  Single  Judge that  the  assignment  of  lands,  made  in  favour  of  the respondents  thirty years ago, could not be touched.  We may observe  that  when two writ appeals were filed against  the common  judgment  and  there  were  two  distinct  questions involved  in  the appeal, both the appeals should have  been heard  together.  However, having regard to the facts of the present  case, we are of the view that since the High  Court in  the  first  Writ  Petition, namely,  Writ  Petition  No.

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9106/94, which was filed by the respondents against the show cause  notice  dated  28.3.1994   for  cancellation  of  the assignment  made  in their favour, had itself  directed  the respondents  to  submit their explanation to the show  cause notice, and had directed the Collector, Rangareddy District, who  was arrayed as second respondent in that Writ Petition, to  consider  and dispose of the explanation, there  was  no occasion  to challenge the action initiated by the Collector at  the interlocutory stage.  The mandamus which was  issued in  Writ Petition No.9106/94 consisted of a direction to the respondents  to  submit their explanation to the show  cause notice  issued to them for cancellation of the assignment of lands made in their favour and a direction to the Collector, Rangareddy  District,  to  consider   and  dispose  of  that explanation.   The explanation submitted by the  respondents was, however, considered by the District Revenue Officer who was of the view that the assignment of lands, made in favour of  the respondents, could not be cancelled and consequently dropped  the  proceedings.  It was, at this stage, that  the Collector  intervened in the matter vide order dated 3rd  of January,  1995  and  suspended the operation  of  the  order passed by the District Revenue Officer and proceeded himself to  enquire into the matter by writing to the Government  on 31st  of  July, 1995, to ratify his action.  As pointed  out earlier, the Government, by its order dated 24th of January, 1996,  ratified  the  action of the Collector.   It  is  not disputed  that  on account of the proceedings, initiated  by the  respondents in the High Court, the Collector could  not complete   the  proceedings.   There   has,  thus,  been   a non-compliance  of the mandamus issued by the High Court  in respondents’  own Writ Petition No.9106/94.  The High  Court in  the impugned judgment has observed as under:- "We do not find  any  infirmity in the reasoning of the learned  Single Judge.   In  any  event, the District  Revenue  Officer  was vested with the power under Section 166-B and in exercise of such  a  power he passed an order recording therein that  it will  neither  be  fair nor proper to reopen  the  issue  of assignment  which took place three decades back by  invoking the  provisions  of  Section 166-B of  the  A.P.(T.A.)  Land Revenue  Act,  1317 Fasli.  We also record  our  concurrence with the observations of the learned Single Judge and record that  no exception can be taken to the order of the District Revenue Officer and the order under appeal cannot be said to be  suffering from any infirmity.  There is no merit in  the appeal.   As  such, this appeal fails and is dismissed.   No order  as  to  costs."  We  cannot  subscribe  to  the  view expressed by the High Court in so far as the order passed by the District Revenue Officer is concerned.  Since a mandamus was  issued  to the Collector, Rangareddy District, to  hear and  dispose  of the explanation, which was required  to  be submitted  by  the  respondents in reply to the  show  cause notice  issued to them, the District Revenue Officer had  no jurisdiction  to  consider  the matter in violation  of  the direction  of  the  High Court.  As a matter  of  fact,  the explanation  to  the show cause notice had to  be  submitted before the Collector and the Collector alone had to consider and  take  a  final  decision in  the  matter.   The  action initiated by the Collector and the ratification of his order by  the State Government are matters which should have  been allowed  to take final shape instead of being challenged  at the  interlocutory stage by the respondents.  That being so, there  is  no  necessity  of going into the  merits  of  the submissions made by the learned counsel for the parties with regard  to the provisions of Section 166-B and 166-C of  the Andhra  Pradesh  (Telangana  Area) Land  Revenue  Act,  1317

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Fasli.   We, therefore, dispose of this appeal finally  with the  direction to the Collector to complete the proceedings, initiated  by him by his order dated 3rd of January, 1995 as ratified  by  the  Government  by its order  dated  24th  of January,  1995,  at  an early date in accordance  with  law. There shall be no order as to costs.