The petitioner assails the cancellation of the assignment of land in his favour which was confirmed in appeal and thereafter in revision. He seeks a consequential direction to the respondents not to interfere with his possession over the assigned land.
The petitioner was assigned an extent of Acs.3.00 in Survey No.78/1 of Aurangabad Village, Medak Taluq, by the Government of Andhra Pradesh under proceedings dated 31.05.1978 of the Tahsildar, Medak Taluq, under the Laoni Rules contained in G.O.Ms.No.1406 dated 26.07.1958 read with G.O.Ms.No.1724 dated 26.08.1959. Survey No.78/1 corresponds to new Survey No.78/69. He was thereafter issued a pattadar pass book and title deeds in respect of the above land under the provisions of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971. While so, the assignment in favour of the petitioner was cancelled by the then Mandal Revenue Officer, Medak, respondent 3, under proceedings dated 28.02.1994.
The petitioner claims ignorance of this development. It is his case that no notice was issued to him prior to the cancellation of assignment in his favour and a copy of the said order was never served upon him. According to him, the officials of the Andhra Pradesh Housing Board (for brevity, 'the Board') tried to interfere with his possession over the assigned land constraining him to approach the Court of the Junior Civil Judge, Medak, by way of a suit, O.S.No.57 of 2002 seeking a permanent injunction. In the counter filed by the Board in his application for a temporary injunction in the said suit, it was disclosed that the assignment in favour of the petitioner had been cancelled. Claiming knowledge from this date, the petitioner filed an appeal before the Revenue Divisional Officer, Medak, under Section 4-A of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for brevity, 'the Act of 1977').
By order dated 11.03.2005, the appellate authority dismissed the appeal on the ground that the appeal was filed beyond time and was barred by limitation. Aggrieved thereby, the petitioner preferred a revision before the Joint Collector, Medak, under Section 4-B of the Act of 1977. By order dated 26.08.2006, the revisionary authority dismissed the revision confirming the cancellation of the assignment in favour of the petitioner and directing respondent 3 to cancel the pattadar pass book issued to the petitioner and to resume the subject land in favour of the Government. Hence, this writ petition.
By order dated 23.02.2007, this Court directed the respondents not to dispossess the petitioner from the subject land. While stating so, this Court further added the rider that if the petitioner was not in possession of the land, it would be open to respondent 3 to take over the possession. This Court further directed that during the pendency of the writ petition, the petitioner should not create third party rights or change the land use.
Speaking on behalf of the revenue authorities, respondent 3 in his counter stated that the petitioner had contravened the conditions of the assignment as the land was split up into house site plots and sold to third parties. The particulars of the sale transactions gleaned from the office of the Sub- Registrar, Medoc, were referred to indicating that registered sale documents were executed by the wife of the petitioner in favour of various persons. Apart from this, it is stated that the assignment was also subject to the condition that whenever the land was required by the Government for a public purpose, it could be resumed duly following the procedure for cancellation of the assignment. Reference was made to the proceedings of the Chief Commissioner of Land Administration, Andhra Pradesh, Hyderabad, vide letter dated 28.12.2001 whereby the subject land was identified for construction of houses by the Board. It is further stated that the possession of the subject land was taken over and delivered to the Board by the Revenue Divisional Officer, Medak, under letters dated 19.01.2002 and 21.01.2002 respectively.
It is however to be noticed that the proceedings of respondent 3 dated 28.02.1994 cancelling the assignment in favour of the petitioner only refer to violation by the petitioner of the condition of inalienability attached to the assignment and no mention whatsoever is made about resumption of the land on the ground that it is required for a public purpose. The cancellation must therefore stand or fall on the touchstone of the reasons recorded in the proceedings dated 28.02.1994 and the same cannot be supplemented by way of a counter affidavit with additional grounds [MOHINDER SINGH GILL v. CHIEF ELECTION COMMISSIONER1].
It is also relevant to note that the counter of respondents 1 to 3 is studiously silent apropos the specific allegation of the petitioner that he was not put on notice prior to the cancellation of the assignment in his favour and even thereafter. The Board, speaking through the counter affidavit filed by its Deputy Executive Engineer, assailed the maintainability of the writ petition on the ground of non-joiner as it was not made party eons nominee and only its Deputy Executive Engineer had been impeded. It further stated that the petitioner amended the prayer in his suit, O.S.No.57 of 2002, seeking a declaration that he was the absolute owner and possessor of the subject land and that the proceedings of the revenue authorities were null, void and not binding on him. It therefore contended that the petitioner could not simultaneously maintain two cases for the same relief. On merits, the Board stated that the subject land along with other extents was transferred by the Government of Andhra Pradesh to it on payment of market value for the purpose of taking up a housing scheme. The possession of the land is said to have been delivered on 21.01.2002. The Board further stated that the petitioner had violated the conditions of the assignment as he had transferred the land to third parties. With regard to the violation of the procedure, the Board contended that even if no notice was issued to the petitioner before or after the cancellation it could not be a ground for him to challenge the cancellation as he had sold away the land to third parties who were given an opportunity prior to the cancellation.
It further stated that the revisionary authority went into the merits of the case and held against the petitioner. Further, as the Board had purchased the said land along with other extents from the Government by paying market value and had taken possession thereof, it contended that at this length of time the third party interest which had been created should not be disturbed. The Board therefore prayed for dismissal of the writ petition. The substantial point that falls for consideration is as to the validity of the cancellation of the assignment in favour of the petitioner. That being so, the ground of non-joiner of the Board in its own name pales into insignificance as no substantial relief is sought against the Board. Further, the pendency of the civil proceedings would not bar the petitioner from assailing the correctness of the cancellation of assignment as it is his case that the same was effected in blatant violation of the statutory procedure and the principles of natural justice. Merely because the petitioner amended the prayer in the suit so as to seek a declaration to the effect that the said proceedings are null, void and not binding on him, it does not preclude this Court from exercising its extraordinary jurisdiction in the matter if warranted.
As this Court entertained a doubt as to whether the petitioner was correct in alleging that he had not been put on notice prior to the initiation of the proceedings under the Act of 1977 for cancellation of his assignment, the learned Assistant Government Pleader for Assignment produced the records. Verification of the same confirmed that no notice was issued to the petitioner prior to the cancellation of the assignment under proceedings dated 28.02.1994. Further, there is no indication in the records that the said proceedings were ever served upon the petitioner. It is no doubt true that Rule 3 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Rules, 1977 (for brevity, 'the Rules of 1977') speaks only of service of notice upon the person who acquired the assigned land and there is no mention of such notice being served upon the assignee who is said to have transferred the assigned land. However, it is to be noted that the scheme of the Act of 1977 is to the effect that such transfers or alienations by the assignee should not be held against him and that even breach of the condition of inalienability would not divest the assignee of his entitlement to the land assigned. This is clear from the Section 4 of the Act of 1977 which speaks 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 of 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." Thus, it is only in a case where the assignee transfers the assigned land for the second time after restoration that the Government is empowered to resume the land for assignment to any other landless poor person. Further, it is to be noted that the transfers in the present case are alleged to have been made not by the petitioner himself but by his wife. The validity and consequence of such transfers itself is open to question.
Be that as it may, even if such transfers are held to have been made by the petitioner himself, the resumption of possession from such transferees requires the authorities to restore the assigned land to the petitioner and only if the same is not reasonably practicable, then assign the same to other landless poor persons. In the present case, the facts demonstrate that this procedure was not followed. On the other hand, the Government having kept the petitioner in the dark throughout sold the assigned land to the Board for value. Such course of action was not authorized by the Act of 1977. As regards the issue of notice, no requirement is prescribed under Rule 3 of the Rules of 1977 to give an opportunity of hearing to the assignee, albeit owing to the fact that after resumption of possession, the assignee was to be restored the assigned land. If that is not the intention of the authorities and they desire to resume possession for purposes other than restoration to the assignee which is permissible under the statute only if such restoration is found to be reasonably impracticable, not a situation obtaining in the present case, the principles of natural justice require that the assignee should be put on notice. Reference may be made to the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Rules, 2007 that superseded the Rules of 1977 which now incorporate the requirement of putting on prior notice not only the transferees but also the assignee who is alleged to have transferred the assigned land. This is only in keeping with the principles of natural justice. When the proposed action entails adverse civil consequences to the assignee, be it the instance of the first or the second transfer alleged against such assignee, it is essential that the norm of 'Audi alter am partum' be complied with.
The action of the respondents in the present case in not issuing a notice to the petitioner prior to the cancellation of the assignment in his favour, when it was their intention not to follow the statutory procedure prescribed in Section 4 of the Act of 1977 whether it be for a reason justifiable under the statute or otherwise, renders the cancellation of the assignment null and void. The revisionary authority, though it dealt with other aspects of the case, did not go into these issues. Once the very cancellation of the petitioner's assignment is held to be illegal for reasons more than one, no rights can flow from the consequential resumption of possession and the alleged delivery thereafter in favour of the Board. It shall however be open to the Board to work out its remedies against the Government.
The Writ Petition is accordingly allowed setting aside the cancellation of the assignment in favour of the petitioner in respect of the land in Survey No.78/1 corresponding to new Survey No.78/69 of Aurangabad Village, Medoc Manual and District, by the Manual Revenue Officer, Medoc, under proceedings dated 28.02.1994, confirmed in appeal by the Revenue Divisional Officer, Medoc, by order dated 11.03.2005 and thereafter in revision by the Joint Collector, Medoc, by order dated 26.08.2006. This order shall however not preclude the authorities from initiating action afresh against the petitioner in accordance with the statutory procedure for contravention of the conditions of assignment, if any. In the circumstances, there shall be no order as to costs.
1 (1978) 1 SCC 405 = AIR 1978 SC 851