Pobbaraju Laxmamma, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 4409 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.20776 OF 2020
ORDER:

Initially, this writ petition is filed under Article 226 of the

Constitution of India, claiming the following relief:

"To issue Writ of Mandamus declining the inaction of unofficial respondents in restoring the land of petitioner by evicting the unofficial respondent from petitioner‟s land situated in Sy.No. 472 of Boyyalavaripalem Village, Gudavalur Gram Panchayath, Kondapuram Mandal, SPSR Nellore District as illegal and arbitrary and consequently direct the official respondents to restore the possession of the petitioner"

Later, the prayer was amended by order of this Court in

I.A.No.2 of 2021 dated 22.09.2021 by replacing the sentence only

to the extent of "declaring the inaction of official respondents in

restoring the land of the petitioner by evicting the unofficial

respondents", as there is a typographical error in the prayer.

The brief facts of the case are that, the petitioner - Pobbaraju

Laxmamma is the resident of Gudavalur Gram Panchayat,

Boyalavaripalem Village, SPSR Nellore District. Her husband

Pobbaraju Tirupal was assigned land of an extent of Ac.0-04 cents

in Boyyalavaripalem Village, Gudavalur Panchayat in the year

1983. Since then, the petitioner‟s family was in possession of the

above land. In the year 2010, the petitioner‟s husband - Tirupal

passed away. Due to financial crisis, the petitioner left the village

in search of her livelihood. After sometime, she returned to the

village with a view to construct a house. She unloaded all the raw

material in her land for construction of the house. While so, she

was obstructed by few villages on the ground that the subject land

belongs to Respondent Nos. 5 to 7. Thereafter, the petitioner MSM,J WP_20776_2020

approached the official respondents in the month of July, 2020,

but they have not taken any action. The petitioner found that

certain construction is being carried out by unofficial respondents

in the land allotted to the husband of this petitioner.

The petitioner specifically contended that, after death of her

husband - Tirupal, she has not sold the land to any person nor

authorized any person to take possession of the land, but she was

obstructed from entering into the land. When the petitioner

questioned, the unofficial respondents informed that they are

constructing house and in that regard, they have dug the land for

raising pillars. When the petitioner approached the unofficial

respondents to settle the dispute, they abused and threatened her

with dire consequences. Though the petitioner approached the

local police, as the unofficial respondents are highly influential

persons, the police have failed to take any action.

The petitioner submits that the subject land is allotted to her

husband - Tirupal; the petitioner and her three children succeeded

the same as legal heirs after death of Tirupal and the unofficial

respondents i.e. Respondent Nos. 5 to 7 have no right to enjoy the

property. Even as per the law, even Tirupal or her legal heirs are

not entitled to sell or create any interest in the assigned land to the

third party and third party is not entitled to claim any right in the

property. But, in the present case, nothing of such kind happened,

but the petitioner being a member of Schedule Caste and

financially weak, Respondent Nos. 5 to 7 took advantage of the

poverty of this petitioner in collusion with the revenue authorities -

MSM,J WP_20776_2020

Respondent Nos. 2 to 4, as well as enforcing authorities, raised

constructions and therefore, action of the official respondents in

failure to restore possession of the property of this petitioner is

illegal and arbitrary.

It is contended that, land of Ac.0-04 cents in

Boyyalavaripalem Village, Gudavalur panchayat was allotted to the

petitioner‟s husband - Tirupal by the fourth respondent/Tahsildar

long ago and no third party can occupy the land of this petitioner

as per law. Even the same is brought to the notice of the official

respondents who are bound to prevent any activity that is being

carried out by third parties in the said land and further, if any

third party is in possession, he/she has to be removed from the

possession and possession to original assignee or legal heir has to

be restored. Though the petitioner approached the official

respondents several times with a request to evict Respondent Nos.

5 to 7 from her land, but no action was taken. Therefore, aggrieved

by the action of Respondent Nos. 1 to 4, the present writ petition is

filed seeking a direction as stated above.

Respondent Nos. 5 to 7 filed counter affidavit along with

vacate stay petition in I.A.No.1 of 2021 contending that,

Respondent Nos. 5 to 7 filed O.S.No.107 of 2020 on the file of

Principal Junior Civil Judge, Kavali against Pobbaraju China

Malakondaiah and Pobbaraju kamalakar, who are the sons of the

petitioner and Tirupal. Respondent Nos. 5 to 7 also filed I.A.No.174

of 2020 in O.S.No.107 of 2020 for grant of temporary injunction

and the Trial Court was pleased to grant interim order dated MSM,J WP_20776_2020

28.07.2020 in favour of sons of the petitioner. The interim order is

being extended from time to time and as on date, it is in force.

Therefore, the writ petition is filed by suppressing pendency of civil

litigation and subsisting interim order, thereby, the writ petition is

not maintainable and sought dismissal of the writ petition on the

ground of suppression of fact.

It is further contended that, one Tallapalem Srinivasulu who

is father of Respondent Nos. 5 & 6 and husband of Respondent

No.7 purchased house plot to an extent of 24 ankanams i.e.

192 sq.yds in Sy.No.472 of Gudavalluru Village, Kondapuram

Mandal, Nellore District under Registered Sale Deed dated

12.03.1991 from Sri Pobbaraju Tirupal. After purchase, Tallapalem

Srinivasulu constructed a thatched house and also obtained

electricity service connection in his name, so also paid house tax to

Gudavalluru Gram panchayat and electricity consumption charges

for the house he purchased. Tallapalem Srinivasulu - father of

Respondent Nos. 5 & 6 died intestate leaving behind him to

Respondent Nos. 5 to 7 as legal heirs and they are in possession of

the property, since the date of death of Tallapalem Srinivasulu. In

order to construct pucca building over the land, Respondent Nos. 5

to 7 removed the old thatched house and started construction of

house after obtaining permission from the gram panchayat. At this

stage, the sons of the petitioner started interfering with the

possession without any right and in those circumstances,

Respondent Nos. 5 to 7 issued legal notice to the sons of the

petitioner and the sons of the petitioner got issued reply to the said

legal notice on 09.07.2020 with false allegations by sons of this MSM,J WP_20776_2020

petitioner. However, admitted about the sale of property in favour

of father of Respondent Nos. 5 & 6. Thus, the petitioner

suppressed certain facts and approached this Court claiming

discretionary relief of writ of mandamus under Article 226 of the

Constitution of India and consequently, the writ petition is liable to

be dismissed.

It is further contended that, Tallapalem Srinivasulu - father

of Respondent Nos.5 & 6 was in possession and enjoyment of the

property by purchase under registered sale deed dated 12.03.1991

and was paying property tax and electricity consumption charges.

But, consequent upon death of Tallapalem Srinivasulu,

Respondent Nos. 5 to 7 became owners of the property by way of

succession and continuing in possession and they are in

enjoyment of the same. Interim injunction obtained from the Trial

Court in I.A.No.174 of 2020 in O.S.No.107 of 2020 is in force. But,

the petitioner instead of approaching the Civil Court, approached

this Court invoking Article 226 of the Constitution of India and

thereby, the petitioner is not entitled to claim any relief in the writ

petition and requested to dismiss the writ petition finally.

During hearing, Sri P. Ravi Kiran, learned counsel for the

petitioner contended that even if any sale deed is executed by the

husband of this petitioner - Tirupal in favour of Tallapalem

Srinivasulu - father of Respondent Nos. 5 & 6, it is void ab initio

and not enforceable and that, the purchaser will not get any right

under the sale deed. No permission was obtained from competent

authority to sell the property by Tirupal. Apart from that, the MSM,J WP_20776_2020

petitioner being the wife of the deceased Tirupal claiming to be the

owner, did not suppress any material fact while approaching this

Court and non-disclosure of interim order in I.A.No.174 of 2020 in

O.S.No.107 of 2020 and pendency of OS..No.107 of 2020 on the file

of Principal Junior Civil Judge‟s Court, Kavali, is not a ground and

failure to disclose issue of legal notice on the sons of Tirupal and

this petitioner is not a ground to claim relief in the writ petition.

On that ground, writ petition cannot be dismissed. In any view of

the matter, the provisions of Andhra Pradesh Assigned Lands

(Prohibition of Transfers) Act, 1977 (for short „Act No. 9 of 1977‟)

conferred such power on the Tahsildar to restore possession of the

property to this petitioner and the petitioner made request to

Respondent No.4 several times for restoration. Hence, the

petitioner sought writ of mandamus, since Respondent No.4 did

not respondent to the request made by this petitioner.

Sri Srinvias Karra, learned counsel for Respondent Nos. 5 to

7 would contend that, when the property was sold to Tallapalem

Srinivasulu - father of Respondent Nos.5 & 6 under registered sale

deed, he became absolute owner of the property and he is in

continuous possession and enjoyment of the property until his

death. Therefore, under sale deed, possession of the property by

this petitioner is legal and consequently, the fourth respondent is

not entitled to restore possession of the property to the petitioner,

while removing the petitioner from the possession of the property.

Apart from that, when the petitioner and her sons are living

together, failure to disclose the interim order in I.A.No.174 of 2020

in O.S.No.107 of 2020 dated 28.07.2020 and legal correspondence MSM,J WP_20776_2020

between the sons of the petitioner and Respondent Nos. 5 to 7 is

fatal. On this ground, the discretionary relief of writ of mandamus

can be denied.

It is further contended that, the writ petition is not

maintainable when O.S.No.107 of 2020 is pending before the Civil

Court and writ petition before this Court invoking jurisdiction

under Article 226 of the Constitution of India, is liable to be

dismissed and requested to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the points that need to be answered by this

Court are as follows:

1. Whether the petitioner suppressed any material fact. If so, whether the writ petition is liable to be dismissed on the sole ground of suppression of material fact?

2. Whether a direction be issued to Respondent No.4 - Tahsildar for restoration of possession of Ac.0-04 cents bearing Plot No.4 in Sy.No.472, which was assigned to the petitioner's husband - Tirupal removing Respondent Nos. 5 to 7 from possession of the property in terms of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977?

P O I N T No.1:

The first and foremost contention of the petitioner is that,

the petitioner is the wife of deceased Tirupal to whom an extent of

Ac.0-04 cents bearing Plot No.4 in Sy.No.472 was assigned by

granting D-Form Patta. A copy of D-Form Patta is placed on record

establishing the same. Thus, Tirupal became owner of the property

by virtue of D-Form Patta granted in his favour. However, in the MSM,J WP_20776_2020

revenue records, more particularly, in the pattadar adangal for the

Fasli 1430, the land to an extent of Ac.2-90 cents in Sy.No.472 is

classified as „Government Land‟ and none is in possession of the

property, as noted in Column Nos. 12 to 15 of Account No.3 of

Gudavalluru Village. The petitioner succeeded the property after

the death of her husband - Tirupal. The petitioner being the wife of

the deceased Tirupal is also one of the legal heirs and succeeded

the property, in view of intestate death of her husband. Thus, the

petitioner is one of the legal heirs of the deceased Tirupal, the

original beneficiary under the assignment.

Learned counsel for Respondent Nos. 5 to 7 contended that,

Tirupal sold the property executing Registered Sale Deed dated

12.03.1991 in favour of Tallapalem Srinivasulu - father of

Respondent Nos. 5 & 6. In the Sale deed dated 12.03.1991, a

specific „note‟ is mentioned at the end, to the effect that, this land

was not assigned to anyone and would not fall within the purview

of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act,

1977. Based on this statement, the document appears to have

been registered by the Registration Department.

Tallapalem Srinivasulu purchased the property and died

intestate. Respondent Nos. 5 to 7 who are the legal heirs succeeded

the property. When there is an unlawful interference with the

possession and enjoyment of their property by the petitioner‟s

sons, Respondent Nos. 5 to 7 filed O.S.No.107 of 2020 on the file of

Principal Junior Civil Judge, Kavali along with I.A.No.174 of 2020

for grant of interim injunction during pendency of the suit MSM,J WP_20776_2020

restraining the respondents thereunder i.e sons of the petitioner (i)

Pobbaraju China Malakondaiah and (ii) Pobbaraju Kamalakar, the

Court was pleased to grant the following order:

"Perused the records. the petitioner filed documents No.1 Original Register sale deed dated 12.03.1991 in favour of T. Srinivasulu executed by P. Tirupal, No.2. Bunch of House tax receipts, No.3 Electricity Service Connection, No.4 A.P. Housing cooperation pass book, No.5 Electricity receipts, No.6 Death Certificate, No.7 Photo along with compact disk, No.8 Electricity receipt name of Dhanamma, No.9 Legal notice with postal acknowledgment of D1 and D2, No.10 reply notice from defendants, No.11 Encumbrance certificate (online copy), No.12 water bills. Prima facie made out and this is a fit matter to grant ad-interim injunction over the petition schedule property in favour of petitioners. Hence, issuance of urgent notice is dispensed with.

In the result, the petition is allowed by granting ad-interim injunction in favour of petitioners/plaintiffs restraining the respondents and their followers, men from interfering with the peaceful possession and enjoyment of the petitioners over the petition schedule property till 27.08.2020 In the meanwhile issue notice to respondents. The petitioners shall comply under Order 39 R3. Call on 27.08.2020."

Ad-interim injunction was issued by the Trial Court in favour

of Respondent Nos. 5 to 7 restraining the respondents i.e. children

of the petitioner (i) Pobbaraju China Malakondaiah and (ii)

Pobbaraju Kamalakar. The petitioner is not a party to O.S.No.107

of 2020 and I.A.No.174 of 2020. This fact was suppressed by this

petitioner while seeking discretionary relief. Similarly, reply to

notice dated 09.07.2020 was got issued by (i) Pobbaraju China

Malakondaiah (ii) Pobbaraju Kamalakar (iii) Pobbaraju Krishna (iv)

Peram Ankulu, claiming right in the property on the ground that

the property was assigned to their father, the respondents are not

entitled to any right over the property. Copy of notice dated

18.06.2020 got issued by Respondent Nos. 5 to 7 is not placed on

record, obviously for different reasons by Respondent Nos. 5 to 7,

but based on alleged suppression of facts, Respondent Nos. 5 to 7

sought to dismiss the writ petition.

MSM,J WP_20776_2020

As seen from the material on record and from the plea raised

by Respondent Nos. 5 to 7, it is clear that, the petitioner -

Pobbaraju Laxmamma is not a party to O.S.No.107 of 2020,

I.A.No.174 of 2020 and reply to legal notice dated 09.07.2020.

Apart from that, the petitioner is the resident of Gudavalur,

Boyalavaripalem, Kondapuram Mandal, SPSR Nellore District,

whereas, as per cause title of I.A.No.174 of 2020 Pobbaraju China

Malakondaiah, the petitioner‟s son is working as a Teacher and

residing at Pamuru village, Prakasam District and Pobbaraju

Kamalakar is residing at BC Colony, Kondapuram Village and

Mandal, SPSR Nellore District. Thus the petitioner - Pobbaraju

Laxmamma and her sons are living separately as per the addresses

given in the cause title of O.S.No.107 of 2020 writ petition and

I.A.No.174 of 2020. Therefore, it can safely be concluded that they

are residing at different places, but not together, thereby question

of attributing knowledge to this petitioner about pendency of the

suit, interlocutory application and reply to legal notice dated

09.07.2020 between her sons and Respondent Nos. 5 to 7 does not

arise. If really, she is a party to O.S.No.107 of 2020, I.A.No.174 of

2020 and reply to legal notice dated 09.07.2020 and suppressed

the same while seeking relief in the writ petition, such non-

disclosure disentitles her to claim discretionary relief in the writ

petition for issue of writ of mandamus. When the petitioner is not a

party to any of the proceedings and not residing along with her

children, it is difficult to attribute any knowledge about pendency

of O.S.No.107 of 2020, I.A.No.174 of 2020 and reply to legal notice

dated 09.07.2020 between her sons and Respondent Nos. 5 to 7 MSM,J WP_20776_2020

and question of suppression does not arise by this petitioner, since

no knowledge is attributable to her. Hence, the contention of

Respondent Nos. 5 to 7 that the petitioner suppressed material fact

while claiming discretionary relief of writ of mandamus is rejected,

for the reasons stated above. Accordingly, the point is answered in

favour of the petitioner and against the respondents.

P O I N T No.2:

The basis for claim of this petitioner is the patta granted in

favour of the husband of the petitioner - Tirupal. The patta is

subject to conditions contained in the D-Form Patta. According to

Condition No.2, the beneficiary shall complete the construction

within six/twelve months commencing from December, 1982.

According to Condition No.7, the allottee shall not transfer or

alienate the land to any person without prior permission from the

government. According to Clause No.8, in case the Government

intends to cancel the assignment and resume the land, no appeal

or revision shall be maintained against the decision of the

Government and the possessor/claimant shall not claim

compensation for the structure constructed therein or for the

development done by the possessor. According to Condition No.9,

the allottee shall not sell away the land to any person without prior

permission of the Revenue Divisional Officer within the period of 10

years or to let out the land, the Government reserves right to

resume the land.

Thus, on grant of patta assigning an extent of 24 ankanams

i.e.192 sq.yds in Sy.No.472 of Gudavalluru Village, Kondapuram MSM,J WP_20776_2020

Mandal, Nellore District, in favour of Tirupal - husband of this

petitioner, subject to the conditions contained in D-Form patta

granted. D-Form patta was granted in favour of Tirupal in the year

1982. However, Respondent Nos. 5 to 7 obtained sale deed from

the original pattadar - Tirupal on 12.03.1991 i.e. almost after nine

years. Strangely, it is mentioned in the document that it is not

governed by the provisions of Andhra Pradesh Assigned Lands

(Prohibition of Transfers) Act, 1977 under a specific „note‟ and got

registered the document with the Sub-Registrar, Vinjamur.

Therefore, the original beneficiary - Tirupal violated the terms and

conditions of the patta granted in his favour and sold the property

by misrepresenting that the land was not assigned and not

governed by the provisions of Andhra Pradesh Assigned Lands

(Prohibition of Transfers) Act, 1977, since there is a prohibition to

sell the property within 10 years without prior permission from

Revenue Divisional Officer as per Condition No.9 and in the event

of sale of the property or create any interest within the time

prescribed, the State shall resume the land in terms of Condition

No.9.

Even in the reply to legal notice dated 09.07.2020 placed on

record by respondents, it is clear that the property was purchased

by father of Respondent Nos. 5 to 6. It is also specifically stated in

the said notice that, it was assigned to husband of this petitioner

Tirupal. Therefore, the source of title to the property to the vendor

of father of Respondent Nos. 5 & 6 is the assignment by granting

D-Form patta. But, suppressing this fact, sale deed was obtained

and registered with the office of the Sub-Registrar, Vinjamur. When MSM,J WP_20776_2020

the assignment was granted in favour of Tirupal - husband of this

petitioner by issue of D-Form Patta, it is always subject to the

provisions of Andhra Pradesh Assigned Lands (Prohibition of

Transfers) Act, 1977.

Section 3 of Andhra Pradesh Assigned Lands (Prohibition of

Transfers) Act, 1977, deals with prohibition of transfer of assigned

lands, which reads as under:

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 to the contrary in any other law for the time being in force or in the deed to 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.

[(2A) No assignee shall transfer any assigned house site, and no person shall acquire any assigned house site, either by purchase, gift, lease, mortgage, exchange or otherwise, till completion of the period of 20 years from the date of assignment. (2B) Where the assigned House site was alienated by the assignee as on the date of commencement of this Act, such house site shall be regularized in favour of the alienee as a one- time measure.

(2C) The eligible family shall be assigned house site only once in life time.]

3. Any transfer or acquisition made in contravention of the provision of sub-section (1) of sub-section (2) [or subsection (2- A)] 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 MSM,J WP_20776_2020

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.

There is a complete ban on transfer of assigned land and the

exception under Sub-section (5) has no application to the present

facts of the case, for the simple reason that, sale, gift, lease,

mortgage exchange of assigned land, if any made by any person in

good faith for valuable consideration, being a landless poor person

or his transferee prior to commencement of the Act. But, it is not

the case of Respondent Nos. 5 to 6 that their father Tallapalem

Srinivasulu purchased the land in good faith being a landless poor

person prior to commencement of the Act. Therefore, the transfer

of the property covered by patta in favour of father of Respondent

Nos. 5 & 6 is only a void transaction in view of Sub-section (3) of

Section 3 of the Act. Therefore, the transaction made by Tallapalem

Srinivasulu - father of Respondent Nos. 5 & 6 under registered sale

deed dated 12.03.1991 is void ab initio.

Section 4 of the Act deals with consequences of breach of

provisions of Section 3. According to Section 4(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 Section 3, have

been contravened in respect of any assigned land, he may, by

order,-

MSM,J WP_20776_2020

(a) take possession of the assigned land, after evicting the person in possession in such manner as may be prescribed ; and

[(b) (i) reassign the said resumed land, other than those lands/areas as may be notified by the Government from time to time in public interest and for public purpose, to the transferee who purchased the land in good faith and for valuable consideration on or before 29th January, 2007, subject to the condition that he/she is landless poor person and is in occupation of the land by using the said land for agriculture or as house site, as on the date of taking possession by eviction:

Provided that the reassignment in case of transferee shall be limited to only such an extent that the total holding of the re- assignee including any other land held by him/her does not exceed 5.00 Acres dry land or 2 ½ Acres wet land:

Provided further that where the transferee who has purchased the land and got reassignment of it, or his legal heir, transfers the reassigned land, the land shall be resumed for assignment to the other eligible landless poor;

(ii) restore the said assigned land, other than those lands/ areas as may be notified by the Government from time to time in public interest and for public purpose, to the original assignee, subject to the condition that he or she is landless poor person as on the date of restoration for one time; or

(iii) assign to other eligible landless poor person:

Provided that the restoration of land shall be limited to only such an extent that the total holding including any other land held by him/her does not exceed 5.00 Acres dry land or 2 ½ Acres wet land:

Provided further that where the original assignee or his legal heir, after first restoration transfers the assigned land, the land shall be resumed for assignment to the other eligible landless poor:

Provided also that if no eligible landless poor persons are available in the village/area, the resumed land will be utilised for public purpose.

Explanation:- For the purpose of this clause "Public Interest" and "Public Purpose" shall mean and include, the Weaker Section MSM,J WP_20776_2020

Housing, Public Utility, Infrastructure Development, Promotion of Industries and Tourism or for any other public purpose.

(c) In the areas which may be notified by Government from time to time, lands resumed under clause 4(a) above, shall be utilized for public purpose.

Taking advantage of Section 4(1)(b)(ii), the petitioner sought

the relief in the present writ petition which permits the authorities

to restore the said assigned land other than those land/areas as

may be notified by the Government from time to time in public

interest and for public purpose, to the original assignee, subject to

the condition that he or she is landless poor person as on the date

of restoration for one time. Therefore, the authorities under the Act

are under obligation to restore the land to the original assignee or

to the legal heirs if they are landless poor as on the date of

restoration for one time.

In the instant case, the petitioner is the wife of the deceased

Tirupal, who is a landless poor person and according to this

petitioner, she is still living as a landless poor person within the

meaning of "landless poor person" under the Act. Therefore, she is

entitled to claim restoration of possession in terms of Section

4(1)(b)(ii) of the Act, being a Class-I legal heir of Tirupal along with

her children. But, their children are not claiming restoration of

possession, since they are parties to O.S.No.107 of 2020 on the file

of Principal Junior Civil Judge, Kavali. The petitioner being a

„landless poor‟ person and member of Scheduled Caste is entitled

to claim benefit under Section 4(1)(b)(ii) of the Act by resuming the

land from Respondent Nos. 5 to 7.

MSM,J WP_20776_2020

A similar question came up for consideration before High

Court of Andhra Pradesh in Letter sent from Plot No.338,

Parvant Nagar, Borbanda, Hyderabad and others v. Collector &

District Magistrate, Ranga Reddy District at Hyderabad1,

where, in the facts of the said case the original assignee sought

relief under Section 4(1)(b)(ii), but the Government raised a plea

that the petitioners are not entitled to restore the land in view of

the amendment of Section 4 by Act No.8 of 2008. However, the

amendment came into force from 21.01.1977, whereas, the

impugned order was passed on 29.03.2005 for resumption of the

land for violation of the conditions. Section 4(1) (a) & (b) of the Act,

obligations of taking possession of assigned land after evicting the

person in possession to restore the land to the original assignee or

his legal heir. However, after resuming the land by Mandal

Revenue Officer, the land was not restored to the petitioner.

Therefore, a direction was issued to the petitioner to file an appeal

for not restoring the possession of the land even after resumption

of the land.

In the instant case, resumption proceedings were not

initiated by the Tahsildar for contravention of the conditions of

patta following procedure under Rule 3 of the Andhra Pradesh

Assigned Lands (Prohibition of Transfers) Rules, 2007 (for short

„the Rules‟) and question of restoration does not arise. Therefore, at

best, the Tahsildar shall initiate the proceedings for resumption of

land strictly adhering to Rule 3 of the Rules by issuing notices in

Form-I and Form-II.

2008 (5) ALT 313 (D.B) MSM,J WP_20776_2020

In view of the law laid down in the above judgment,

whenever action under Section 4 of the Act is initiated by the

District Collector or authorized officer, the authority is required to

issue notices in Form-I and Form-II to the assignee and the

transferee from the assignee and restore possession after resuming

the land. However, the power of the Tahsildar under Section 4(1) is

not mandatory. Since the language employed in Section 4(1) is

"may", the expression "may" according to Section 4(1) does not

indicate that is a mandatory obligation of the Tahsildar. If the

original assignee violated terms of the grant without showing

justification for such violation, the authorities would be justified in

refusing to restore possession to him of the land originally assigned

in his favour (vide Uppu Pindaiah v. Mandal Revenue Officer2).

Thus, it is clear from the law laid down by the High Court in the

judgment referred above that it is not a mandatory obligation to

restore possession to the original assignee or the legal heirs after

resumption of the land. But, when once it came to the notice of the

State, the Tahsildar/Respondent No.4 ought to have taken steps to

resume the land for violation of conditions of patta issued in favour

of the husband of this petitioner - Tirupal. Obviously for different

reasons, the Tahsildar/Respondent No.4 disown his obligation to

discharge his public duty to resume the land after following the

procedure prescribed under Rule 3 of the Rules. In any view of the

matter, when the Tahsildar/Respondent No.4 and the District

Collector/Respondent No.2 are the authorities who are competent

to resume the land in terms of Section 4 for violation of terms and

1986 (2) APLJ 39 (SN) MSM,J WP_20776_2020

conditions of the patta and they shall initiate proceedings.

otherwise, it amounts to encouraging the beneficiaries to sell the

property being the landless poor and they will remain as landless

poor forever and the purchasers will be the ultimate beneficiaries.

When the grant is in favour of Tirupal - husband of this petitioner,

subject to the compliance of conditions in patta, sale of property in

contravention of Condition Nos.7 to 9, the transaction is vitiated by

fraud in obtaining registered sale deed, as it was specifically

mentioned in the „note‟ that this land was not assigned to anyone

and would not fall within the purview of Andhra Pradesh Assigned

Lands (Prohibition of Transfers) Act, 1977, thereby, the transaction

is null and void. Based on such transaction, filing of O.S.No.107 of

2020 on the file of Principal Junior Civil Judge, Kavali by

Respondent Nos. 5 to 7 against the children of this petitioner will

not come in the way of Respondent No.2/District Collector and

Respondent No.4/Tahsildar to take appropriate action strictly in

terms of Section 3 read with Section 4 of the Act and Rule 3 of the

Rules. The interim order in I.A.No.174 of 2020 dated 28.07.2020 is

not binding either on this petitioner or Respondent Nos. 1 to 4.

Hence, Respondent No.2/District Collector and Respondent

No.4/Tahsildar are under statutory obligation to initiate

proceedings under Section 3 read with Section 4 of the Act and

Rule 3 of the Rules and restore the possession, subject to the

principle laid down in Uppu Pindaiah v. Mandal Revenue Officer

(referred supra).

Learned counsel for Respondent Nos.5 to 7 would contend

that, Tirupal - father of this petitioner purchased the property MSM,J WP_20776_2020

under registered sale deed as discussed above. But, merely

because it was purchased for valuable consideration by Tallapalem

Srinivasulu - father of Respondent Nos. 5 & 6, it is not saved by

Sub-section (5) of Section 3 and therefore, they will not get title as

the very sale transaction is null and void in terms of Sub-section

(3) of Section 3 of the Act. Therefore, the contention of learned

counsel for Respondent Nos.5 to 7 is hereby rejected.

In view of my foregoing discussion, I find that, it is a fit case

to direct Respondent No.2/District Collector and Respondent

No.4/Tahsildar to initiate necessary proceedings for resumption of

land under Section 3 read with Section 4 of the Act and Rule 3 of

the Rules, strictly following the guidelines issued by this Court in

Sudalagunta Sugars Limited v. Joint Collector, Chittoor

(referred supra) for resumption of land and subject to satisfying the

principle laid down by the High Court in down in Uppu Pindaiah

v. Mandal Revenue Officer (referred supra), restore the same to

the petitioner, if she remains as landless poor, as on the date of

restoration, if any. Moreover, restoration of possession is the

discretion of Respondent No.2/District Collector and Respondent

No.4/Tahsildar and in case, if restoration is not possible and

Respondent No.2/District Collector and Respondent No.4/

Tahsildar need not exercise their discretionary power to restore

possession of the property, they shall follow the procedure to

reassign the same to any eligible landless poor as per Section 4 of

the Act.

MSM,J WP_20776_2020

In the result, writ petition is allowed, directing Respondent

No.2/District Collector and Respondent No.4/Tahsildar to initiate

necessary proceedings for resumption of land under Section 3 read

with Section 4 of the Act and Rule 3 of the Rules, strictly following

the guidelines issued by this Court in Sudalagunta Sugars

Limited v. Joint Collector, Chittoor (referred supra) for

resumption of land and subject to satisfying the principle laid

down by the High Court in down in Uppu Pindaiah v. Mandal

Revenue Officer (referred supra), restore the same to the

petitioner being the Class-I legal heir of the original assignee

Tirupal, if she remains as landless poor, as on the date of

restoration, if any, subject to permissibility, in view of the principle

laid down by the High Court in down in Uppu Pindaiah v. Mandal

Revenue Officer (referred supra). In case, Respondent

No.2/District Collector and Respondent No.4/Tahsildar did not

exercise their discretionary power to restore possession of the

property, they shall follow the procedure to reassign the same to

the any eligible landless poor as per Section 4 of the Act.

Consequently, miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:01.11.2021 SP