HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.2726 of 2009
O R D E R:
This writ petition is filed for the following relief: "to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring that the action of the respondents 1 to 4 in not considering the representation of the petitioner society dated 26.5.2008 in accordance with the G.O.Ms.No.166 dated 16.2.2008 and not allotting the lands in Sy.No.495/2, 3, 4, 5 and 496/1, 2, 3, 4 in an extent of Ac.19.69 cents situated at Avilala Village, Tirupati Rural Mandal, Tirupati, Chittoor District in favour of the petitioner society as illegal, arbitrary and in violation of provisions of Constitution of India and consequently direct the respondents 1 to 4 to allot/transfer the lands in Sy.No.495/2, 3, 4, 5 and 496/1, 2, 3, 4 in an extent of Ac.19.69 cents situated at Avilala Village, Tirupati Rural Mandal, Tirupati, Chittoor Dist in favour of the petitioner society as per the G.O.Ms.No.166 dated 16.2.2008..."
2. This Court has heard Sri Ch.Siva Reddy, learned counsel for the petitioner, learned Government Pleader for Assignment and Sri K.Rammohan for respondent No.5. 2
3. Sri Ch.Siva Reddy, learned counsel for the petitioner submits that the petitioner is a society and that it has acquired the land which is the subject matter of a dispute in various survey numbers through proper documents from the original owners. For more than 30 years, members of petitioner-society and predecessors in interest have been in possession of the property. It is also argued that when the petitioner wanted to get a layout approval, they approached the TUDA and realized at that time that the Government is claiming rights over the land and was in the process of allotting the same to respondent Nos.5 to 7 etc. Learned counsel for the petitioner also submits that it has filed W.P.No.5825 of 2004, which is dismissed but by holding that the respondents should dispose of the representations made in January, 2001 by the petitioner-society. In a writ appeal, this order has also been confirmed. Learned counsel submits that thereafter, it has made a number of representations, but the Government has a not acted favourably. Learned counsel also submits that G.O.Ms.No.166 dated 16.02.2008 was issued for the purpose of regularizing occupied Government lands. The petitioner-society therefore made representations 3 for regularization of the land and even this was not considered. Therefore, learned counsel submits that this writ petition is filed to consider the representation dated 26.05.2008 in accordance with G.O.Ms.No.166 dated 16.02.2008.
4. In the alternative, learned counsel also submits that even if the land is considered to be assigned land as stated by the Government, the respondents had a duty to take steps to cancel the assignment within a reasonable period. He relied upon the judgment reported in B.Adinarayana Murthy v. Collector, Anantapur1. Learned counsel submits that the power of resumption cannot be exercised five or six years after the assignment, even this is preceded by a proper inspection etc. Relying upon Collector and others v. P.Mangamma and others2, learned counsel submits that a reasonable period even as per the Hon‟ble Supreme Court of India cannot be decided with strict precision, but the same should be done within a reasonable period which would depend upon the facts and circumstances of the case. 1 2000 (1) ALD 168 2 (2003) 4 SCC 488 4 Stating that the petitioner-society and his predecessors were in possession for more than 30 years, it is argued that the State cannot take the plea that the property is resumed.
5. On behalf of the Government Pleader for Revenue, extensive arguments were advanced. The counter affidavit filed is relied upon by the learned Government Pleader. He relies on the averments in the counter affidavits which are reiterated for each of the extents of land and their classification etc., are mentioned at more than one place in the counter affidavit. It is also categorically asserted that petitioners are not in possession of some of the extents of land which they claim. It is stated that the possession of bulk of the land was taken in July, 1998 itself (Ac.13.40 cents). It is also stated that Ac.2.10 cents in Sy.No.495/2 was never alienated in favour of the petitioner. Land in Sy.No.495/3 is stated to be under the possession of the DKT Pattadar only. Thus, Ac.4.94 cents is said to be in possession of the DKT Pattadar, while Ac.15.94 cents is with the Government. It is also stated that G.O.Ms.No.166 is not applicable to the facts of the case as the petitioner-society is not in possession and or enjoyment of the property. They do not even have valid 5 title. It is stated that the lands have already been allotted to various associations.
6. Learned Government Pleader points out that the proceedings of the Mandal Revenue Officer dated 31.07.1998 by which the land is resumed have been filed by the petitioner-society as an additional document. He points out that this particular order of resumption has not been challenged. This order refers to assigned lands only. He concludes by stating that there are very very seriously disputed questions and a writ is not a proper remedy.
7. On behalf of respondent No.5 also, learned counsel argues the matter and states that out of Ac.19.69 cents of land, an extent of Ac.8.14 cents has been given to 5th respondent-association on payment of market value. They are also claim to be in possession of the property.
8. COURT: After considering the submissions made, this Court notices that there are very seriously disputed issues of fact and law in this case. There is an order dated 31.07.1988 in which the petitioner‟s case was considered. The petitioner wanted No Objection Certificate to be issued to secure layout approval from the TUDA. The petitioner relied upon sale 6 deeds etc., and claimed the relief. A detailed order running up to 11 pages was passed, wherein certain legal and other issues were discussed and ultimately it was held that the purchase of the property is contrary to the provisions of law. It is also noted that the petitioner and the members of the society are all educated people, who are in Government service etc., and are not landless poor. Therefore, it is held that the petitioner-society is not entitled to No Objection Certificate. This order, as rightly pointed out by the learned Government Pleader, has not been challenged and resumption order therefore cannot be reopened now.
9. The petitioner-society also filed W.P.No.5825 of 2004 which was disposed of on 26.04.2004. After purchase of the property, they approached the High Court questioning the inaction of the Government in not confirming the same in their favour. They questioned the action of the Government and taking steps to allot the land to other associations also. Learned single Judge clearly held that the transaction entered into namely the purchase of assigned land is a void transaction and that the beneficiaries cannot sell or create third party interest. Therefore, learned single Judge held that 7 a direction under Article 226 of the Constitution of India cannot be issued contrary to the provisions of the statute to regularize the illegality committed by the beneficiaries. Therefore, the relief claimed by the petitioner-society namely that the sale in its favour should be confirmed by fixing the rate was not granted by the Court. The representation dated 09.01.2001 was however directed to be considered. A Writ Appeal was also filed against this order namely, W.A.No.779 of 2004. The Division Bench noticed that the petitioner- society agreed that the land belongs to the Government. The single Judge‟s finding that the assigned land was purchased violating the terms and conditions was noted by the Division Bench and ultimately it was held that the Court cannot grant any relief under Article 226 of the Constitution of India, the Writ Appeal was dismissed.
10. The judgment of the single Judge and the Division Bench make it clear that the transaction entered into by the petitioner-society is a void transaction, which cannot be regularized through the Court. These orders are binding on the petitioner-society. The order of the Division Bench is also binding on this Court. It is also noticed that the petitioner 8 sought a „confirmation of its title‟ in W.P.No.5825 of 2004 but is asserting complete title in the present writ and also seeking „regularization‟.
11. As far as G.O.Ms.No.166 is concerned, it is very clear that it applies to certain occupations and encroachments of „unassigned‟ Government lands. The District Collector is the empowered authority to receive applications for transfer of rights in unassigned Government lands.
12. In the case on hand, admittedly, the lands which the petitioner-society claiming right are assigned lands, which have also been resumed by the Mandal Revenue Officer by his order dated 31.07.1988. These actions were taken for violation of conditions of assignment by the original allottees and the purchase by the association. Admittedly, the petitioner-society has also recognized that these are assigned lands. If that is the situation, in the opinion of the Court, the petitioner now cannot rely upon G.O.Ms.No.166 dated 16.02.1988 and claim a relief thereunder. The respondents have also come on record stating that the land has already been allotted to other associations. Therefore, the petitioner- society cannot rely upon the conditions of this Government 9 Order to claim any relief. There are also very serious questions of facts raised about the title of the petitioner- society and also its enjoyment of the land. The petitioner- society has not filed any independent documents to show that they are in actual possession and enjoyment of the land. Even in the order dated 31.07.1988, for certain extents of land, the Mandal Revenue Officer held that the petitioner- society did not even have title, for example for Sy.No.495/2, the finding recorded is neither the original assignee nor the legal heir, nor the DKT pattadar effected a registered sale deed in favour of the petitioner. To the same effect is the finding in Sy.No.495/3 for Ac.2.79 cents. These are all disputed questions of fact which cannot be decided in the writ petition.
13. To the detailed counter affidavit that has been filed, a reply has also been filed but many of the issues raised have not been actually answered by the petitioner-society. The endorsement of the Joint Collector in the application made by the petitioner-society will not inure to their benefit as it is merely a recommendation to look into the case. It also speaks of „resumed‟ land. Learned single Judge of this Court 10 in W.P.No.5825 of 2004 clearly held that the petitioner-society purchased the assigned lands. This finding was confirmed in the writ appeal also. Hence, the applicability of the Government Order 166 itself is in serious doubt. Unless the petitioner has a „right‟ and there is a corresponding duty on the respondent, a „Mandamus‟ cannot be granted.
14. For all these reasons, this Court is of the opinion that the petitioner-society has not made out a case for grant of a relief.
15. The writ petition is therefore dismissed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.
________________________ D.V.S.S.SOMAYAJULU,J Date: 01.12.2022 KLP