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
