High Court · 2010

Order

The petitioners are the assignees of land situate in Sy.No.1068 of Ankulpatur Village, Chillakur Mandal, Nellore district. Petitioners 1 and 2 were assigned an extent of Ac.3.00 of land, each, situate in Sy.No.1068/3 and 1068/1 respectively on 24-08-1988 and 06-05-1985. The predecessor of the 3rd Petitioner viz., Mastanaiah was also assigned Ac.3.00 of land in Sy.No.1068 on 06-05-1985. Petitioners 4, 5 and the mother of the 5th Petitioner were also assigned a total extent of Acs.5.30 cents in Sy.No.1068/2P on 08-12-1994. The said land was vested in the Government by virtue of it being declared as surplus under the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. The petitioners claim that soon after the assignment, they brought the land under cultivation in compliance with the conditions of assignment.

The 3rd Respondent viz., the Revenue Divisional Officer, Gudur, SPSR Nellore District issued a Show Cause Notice in Rc.A.F.No.1420/2001, dated 21-03-2001 on the petitioners proposing to cancel the said assignments stating that the lands were not brought under cultivation ever since the assignment and that the petitioners were also not residing in the village. The petitioners submitted explanation dated 20-04-2001, explaining that the land assigned was dry land and they brought the said land under cultivation. They also explained that the surrounding lands were brought under prawn culture, thus disabling them from raising even the dry crops. While so explaining, they also sought for permission to use the land for prawn culture.

The 3rd Respondent without considering the said explanation passed orders dated 07-05-2002 in File No.Rc.A.1420/2001. The 3rd Respondent even while referring to the show cause notice and the explanation offered by the petitioners, without considering the correctness of the explanation canceled the assignment. The said order to the extent relevant is as follows :

“It is a fact that the lands of Acs.14.30 of land in S.No.1068 of Ankulapatur Village was assigned to the members of the family of Modiboina Balaramaiah only who managed to get allotment orders in the name of one family members. It is proved that all the allottees are in one joint family. Further one of the allottee Sri Modiboina Masthanaiah, son of Ragaiah died without any legal heirs. Instead of resuming the land to Government this land was transferred in the name of Modiboina Gopinadh, son of Balaramaiah (brother’s son of the deceased) this is irregular. Further, Sri Mekala Janardhan, son of Kondaiah, is an employee at the time of allotment. Now also he is working. Further all the allottees are non-residents of Tikkavaram Village and Modiboina Chenchamma and Usa Pitchama are the residents of Chedimala Village. Further, the Mandal Revenue Officer, Chillakur reported that all the lands allotted to them in S.No.1068 are kept vacant from the date of grant. They have not brought the land under cultivation till today from the date of grant. Hence, the allottees have violated the Rule 10(4) of APLR (COAH) Act 1974. Further Sri Modiboina Balaramaiah and Modiboina Gopinadh, son of Balaramaiah have alienated the lands allotted to them to Sri Gandavarapu Sreenivasulu Reddy, son of Dharma Reddy under registered sale deed No.309 dated 21-03-2001 and Modiboina Chenchamma has alienated the land allotted to her and her mother Usa Pitchamma to Modiboina Balaramaiah under registered sale deed No.326 dated 21-03-2001 and Mekala Vanamma sold the land to Balaramaiah under registered sale deed No.325 dated 21-03- 2001. It is proved that all the lands were alienated by the allottees by way of registered sale deeds except Sri Mekala Janardhan who is a Government employee and not eligible for grant. He has also violated the condition of cultivation prescribed under rule 10(4) of APLR (COAH) Act, 1974. In the above circumstances the amount paid by the allottees in sub-section (2) of Section 14 of the APLR (COAH) Act is hereby ordered to be forfeited to the Government. The land allotted to the following persons are hereby ordered to be resumed to the Government under rule 10(5) of APLR (COAH) Act Rules 1974 for violation of condition of grant non-cultivation and alienation.” The order extracted above discloses that the 3rd Respondent cancelled the assignment mainly on the ground that the petitioners 2 to 5 alienated the assigned land violating the conditions prescribed under Rule 10(4) of the Rules and the 1st Petitioner being a Government employee was not eligible for grant. Be that as it may, the petitioners preferred an appeal against the said order before the 2nd Respondent – Joint Collector, Nellore. The Joint Collector, Nellore dismissed the Appeal filed by the Petitioners by orders in D.Dis(E2)3300/2002, dated 05-09-2002. The petitioners carried the matter by way of revision petitions before the 1st Respondent, Commissioner, Appeals. The 1st Respondent on a consideration, dismissed all the revisions as not maintainable on the ground that the A.P. Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974 do not provide for such remedy. Aggrieved by the same, the petitioners have filed this revision. Heard the learned counsel. The learned counsel for the petitioners would contend that the petitioners by virtue of the show cause notice dated 21-03-2001 were called upon to explain whether the lands allotted to them were brought to cultivation and that whether they were residing in the village. It is their specific case that they submitted explanation thereto and explained that the lands were brought under cultivation and they are the residents of the respective villages. The counsel would therefore contend that the third respondent should have examined the explanation to the said extent only. The third respondent however exceeded the scope of the show cause notice and passed orders on altogether new grounds which were not indicated in the show cause notice. The counsel would further contend that while the appellate authority did not examine the grounds raised by the petitioners but dismissed the appeal by a cryptic order, the 1st Respondent is not right in holding that the revision filed by the petitioners is not maintainable. He would therefore contend that the orders assailed in the Writ Petition are unsustainable in law. The learned Government Pleader would submit that the petitioners failed to bring the land under cultivation and they ceased to be the residents of the village. He would contend that the appeal filed by the petitioners before the Joint Collector and the revision petitions before the 1st Respondent are incompetent, therefore the petitioners are not entitled for any relief in this writ petition. There is no dispute that the petitioners were allotted the land as per the aforesaid provisions. It is the specific case of the petitioners that the land is under cultivation and in support of the same, they seek to rely on the revenue records such as adangals. Appeal/Revision are remedies which should be provided by a statute but not otherwise even by consent of parties. If a statute prescribes such remedies of appeal/revision and to a prescribed authority in a manner prescribed, such appeal/revision should be invoked by an assigned party to such prescribed authority in the prescribed manner. Therefore, before examining the order passed by the Revenue Divisional Officer in Proceedings dated 07-05-2002, it may be necessary to examine whether the appeal and the revision preferred by the petitioners before the 2nd and 3rd Respondents respectively, are maintainable in law. Rule 10 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974 provides that the land vested in the Government under the Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, shall be allotted by the Tahsildar for use as house sites for agricultural labourers, village artisans or other houseless poor persons or to landless poor persons for purposes of agricultural or purposes ancillary thereto. The Rule has enumerated the procedure for allotting Government Land. Sub-Rule 4 lays down the conditions subject to which the allotment is to be made. Clause-F thereof provides that the land transferred for purposes of agriculture or for purposes ancillary thereto should be cultivated personally by the transferee or any of the members of his family or by hired labour. Clause (g) provides that the allotment is not transferable except by way of mortgage in favour of the Government, a bank or a cooperative society including a land mortgage bank. As mentioned above, lands were assigned to the petitioners under the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holding) Rules, 1974. Under the orders of the 2nd Respondent/Revenue Divisional Officer the assignment was cancelled and directed that the lands be resumed as per the provisions of clause (5) of Rule 10. Clause (6) thereof provides that against every order of resumption passed by the Revenue Divisional Officer an appeal shall lie to the District Collector within 30 days from the date of communication of the order. The said clause unequivocally prescribes that a person aggrieved by an order of resumption passed by the Revenue Divisional Officer, should prefer an appeal to the District Collector. In the instant case, the petitioners did not prefer any such appeal to the District Collector, instead they preferred an appeal to the Joint Collector. The Appeal must therefore be held to be incompetent and not maintainable. The Joint Collector without noticing the said provision of law entertained the appeal and passed orders dated 05-09-2002. It is well settled that an order passed by an authority without being vested with any such powers under the provisions of law is without jurisdiction and the same is unenforceable in law. It must therefore be held that the order passed by the Joint Collector dated 05-09-2002 is without jurisdiction. The Rules do not provide any further remedy against the orders passed by the District Collector on an appeal filed against the orders of the Revenue Divisional Officer. Therefore, the Revision Petitions filed by the petitioners before the 1st Respondent are also not competent. It is also well settled that in the absence of a remedy provided, no authority can exercise powers by assuming the powers not vested in such authority. It must therefore be held that the order passed by the 1st Respondent cannot be said to be incorrect. The only question that remains to be considered is whether order passed by the 3rd Respondent i.e., Revenue Divisional Officer dated 07- 05-2002 is sustainable in law. As noted above, under the show cause notice dated 21-03-2001 the land was sought to be resumed on the ground that the land was not brought under cultivation and that the petitioners ceased to be the residents of the village. The show cause notice dated 21-03-2001 issued in this regard did not contain any other reason nor the petitioners were called upon to explain other reasons than those mentioned in the said show cause notice. However, the 3rd Respondent proceeded to consider other facts viz., that the lands allotted were alienated by means of a registered sale deeds and in the case of the 1st Petitioner he was not eligible as he was a Government servant. These grounds were not indicated in the show cause notice and the petitioners had no opportunity to meet the said allegations. Further, the 3rd Respondent also did not independently examine the explanation of the petitioners that they brought the land under cultivation and they never ceased to be the residents of the village. To the said extent, it must be held that the order dated 07-05-2002 passed by the 3rd Respondent is violative of the basic principles of the natural justice. In this view of the matter, I am of the view that the said order is liable to be set aside, however with a direction to the 3rd Respondent to conduct de novo enquiry by giving fresh show cause notice to the petitioners and pass appropriate orders after receiving the explanation of the petitioners in accordance with law. The Writ Petition is accordingly disposed of. There shall be no order as to costs. 22nd November, 2010. _________________ NOUSHAD ALI, J. HON’BLE SRI JUSTICE NOUSHAD ALI W.P.No.22784 of 2008 Date : 22-11-2010 Between : M.Janardhan and 4 Others .. Petitioners The Commissioner, Appeals, Office of the Chief Commissioner of Land Administration, Government of A.P., Hyderabad and 3 Others .. Respondents