IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO.2644 of 2000 Between: The Ananthpur District Cooperative Marketing Society, Ananthapur Rep By its Business Manager, Linguttla Venkata Naidu S/o Nallaiah Aged 56 R/o Ananthapur. ...PETITIONER AND 1 Govt. of A.P., Revenue (Assn.IV) Dept., Rep By Its Secreatary, Secretariat, Hyderabad. 2 The Special Cheif Secretary And Cheif Commissioner of Land Administration, A.P., Hyderabad. 3 The District Collector, Anantapur. 4 The Joint Collector, Anantapur. 5 The Mandal Revenue Officer, Penukonda Anantapur District. ...RESPONDENTS Counsel for the Petitioner: MR.O.Manoher Reddy Counsel for the Respondents: GP for Revenue (Assignments) The Court made the following: ORDER: This Writ Petition is filed for a Writ of Mandamus to set aside G.O.Rt.No.1945 Revenue (Assn.IV) Department dated 28.12.1999, whereby the land alienated in favour of Penukonda Cooperative Marketing Society was resumed. Heard Sri O.Manoher Reddy, learned counsel for the petitioner and the learned Assistant Government Pleader for Revenue (Assignments) for the respondents. An extent of Ac.0.70 cents of land in Survey No.443-1A of Penukonda Town was assigned to the petitioner on payment of market value, ground rent and tree value as per G.O.Ms.No.564 dated 31.03.1961. The said society got merged with the petitioner’s society on 01.06.1987 under Single Window System and thereby, the petitioner’s society succeeded to the said property. The petitioner established a decorticator and constructed a godown after obtaining the consent from the District Collector. On 08.09.1994, respondent No.4 issued a show cause notice calling upon the petitioner to show cause why the land assigned to the petitioner shall not be resumed for violation of certain conditions of assignment. The petitioner submitted its explanation, which appeared to have been forwarded to respondent Nos.1 and 2 and the former, by the impugned proceedings dated 28.12.1999, ordered for resumption of entire extent of Ac.0.70 cents. Sri O.Manohar Reddy, learned counsel for the petitioner-society submitted that the impugned order is liable to be set aside for four reasons namely, (1) that respondent No.4 has no power and jurisdiction to issue show cause notice because the land was assigned on market value by respondent No.1; (2) that the order passed by respondent No.1 is in flagrant violation of the principles of natural justice because while respondent No.4 issued show cause notice and received explanation, Government passed the order; (3) that respondent No.1 relied on proceedings dated 29.11.1994 and 06.02.1995 mentioned in reference Nos.4 and 5 of the impugned G.O., without supplying copies of the said reports to the petitioner and without making the petitioner aware of the contents of the said documents; and (4) that at any rate, the reasons contained in the order are irrational and respondent No.1 failed to make out a case of violation of conditions 1, 9 and 11 of G.O.Ms.No.564 dated 31.03.1961 by which the assignment was made to the petitioner. Learned Assistant Government Pleader for Revenue (Assignments) strongly opposed these contentions of learned counsel for the petitioner and submitted that in the face of the admitted fact that the petitioner leased out a part of the land for school, which is a purpose other than for which the assignment was made, the respondents are justified in canceling the assignment. I have carefully considered the respective submissions of the learned counsel for the parties and perused the record. With regard to contention Nos.2 and 3 of the learned counsel for the petitioner, I find force in his submissions. The purpose of issuing a show cause notice is to hear the version of the party before taking a decision. It is, therefore, always desirable that the authority, which proposed to pass an order should invite the explanation of the party, so that, it will independently apply its mind. By permitting respondent No.4 to issue a show cause notice and itself passing an order, respondent No.1 has reduced the formality of a show cause notice to a mere ritual. In Gullapalli Nageswara Rao Vs. A.P. State Road Transport Corporation(1), the Supreme Court set aside the decision taken by the Government of Andhra Pradesh in the cases pertaining to nationalization of routes in Andhra Pradesh on the principle that one who hears alone shall decide. The Supreme Court observed that if one person hears and another decides, then personal hearing becomes an empty formality. The ratio in the said judgment squarely applies to this case. I also find force in the submission of the learned counsel for the petitioner that before relying on the reports of the District Collector and Commissioner, Land Revenue, referred to references 4 and 5 in the impugned order, Government ought to have put the petitioner to notice about the said two orders. The said orders are relied on by respondent No.1 to the detriment of the petitioner. Thus, the order passed by respondent No.1 is vitiated by non- observation of principles of natural justice. Coming to contention Nos.1, 2 and 3, in the show cause notice issued by respondent No.4, it is inter alia stated that according to the terms contained in G.O.Ms.No.564 dated 31.03.1961, the land shall be used for construction of godown and erection of decorticator and expeller; and that an open site in the premises was leased out to the Correspondent, Pragathi Convent, for a period of two years on a monthly rent of Rs.500/- (Rupees five hundred only) from 01.09.1992 to 31.08.1994. He relied on the report of the Mandal Revenue Officer, Penukonda, wherein it was stated that the petitioner constructed a building over an extent of 0.15 cents leaving a vacant site of 0.55 cents. Out of that, 0.12 cents was leased out to Pragathi Convent and another portion of 0.04 cents of two buildings has been leased out to the Convent School. Respondent No.4 relied on conditions 1, 9 and 11 alleging that the petitioner violated the conditions of assignment. In its explanation, the petitioner submitted that the society was running under losses. Its Board of Directors decided to lease out the godowns constructed to Pragathi Convent for the purpose of running a school subject to the approval of the higher authorities and since, no approval could be obtained, the lease, which was given only for a period of two years and which expired on 31.08.1994, was not extended further. It is also stated that the petitioner is also taking steps to recover the said godown from the said convent. An objection was raised that the Government has got power to resume the land under condition No.2 and this power of Government is required to be exercised within a reasonable time, namely, twelve {12} years from the date of assignment. In the impugned order, the Government relied on the proceedings of the District Collector dated 29.11.1994 and the Commissioner, Land Revenue of Andhra Pradesh dated 06.02.1995 and resumed the land. Condition No.1 of G.O.Ms.No.564 stipulates that the lands shall be used for construction of two godowns and expeller and for no other purpose. Condition No.2 empowers the Government to resume the land in the event of infringement of the conditions of the grant. Condition No.9 stipulates that the market yard, godown and buildings should be constructed within a period of two years from the date of grant. Condition No.11 envisages that no part of the land shall be built upon without the previous permission of the Collector. A careful reading of these conditions shows that while condition No.2 provides for consequences of infringement of conditions, condition Nos.9 and 11 cannot be said to have been violated by the petitioner because it is not the case of the respondents that the petitioner failed to construct the necessary buildings over the land or that any building was constructed without the permission of the Collector. With regard to Condition No.1, the same reads as under:- “The land shall be used for construction of godown and erection of decorticatory and expeller and for no other purpose”. Admittedly, the petitioner has not raised any construction other than godowns and erection of decorticator and expeller. However, the allegation made by the respondents and admitted by the petitioner is that Ac.0.12 cent of vacant site and a part of godown over an area of about Ac.0.04 cents were leased out to a school. Though the above reproduced clause, literally construed, may not constitute violation thereof, because, no building was constructed for running of a school, but keeping in view the object of the said clause, viz., to ensure that the property which is given for running a decorticator and expeller shall not be used for any other purpose, leasing of a part of the godown constitutes violation of the said clause. However, respondent No.1 failed to take into consideration the explanation submitted by the petitioner that as the Society was running on losses, it leased out a part of the property for running a school and that as it could not obtain permission from the District Collector to permit running of a school, the petitioner did not extend the lease period, which expired on 31-8-1994. A perusal of the impugned G.O. shows that the Government failed to apply its mind independently, but allowed itself to be guided by the opinions of the District Collector, Anantapur, and the Commissioner of Land Revenue. It failed to advert to the explanation offered by the petitioner and also keeping in view that the assignment was made as far back as the year 1961 and resumption of the entire land, which was allotted to the predecessor of the petitioner on market value, causes grave hardship to the interest of the petitioner, which is a District Co-operative Marketing Society and not an individual. In my considered view, respondent No.1 ought to have made a lenient approach considering the above two facts viz., that the assignment was made in the year 1961 and market value was collected from the assignee; in addition to the fact that the petitioner, who leased out a part of the property for running a school, retraced its steps having realized that the same did not have the approval of the District Collector. On a consideration of the facts in their entirety, the conclusion is irresistible that resumption of the entire land assigned on market value on the allegation of leasing out a part of the property is too harsh and disproportionate to the nature of the violation of the terms of the agreement. Instead of canceling the assignment and resuming the land, it would have been more appropriate if respondent No.1 had condoned the lapse, which was evidently committed for the first time by the petitioner with a caution to it not to repeat the same in future. For the above-mentioned reasons, the Writ Petition is allowed and the impugned order is set aside. Liberty is, however, given to respondent No.1 to take appropriate action if the petitioner indulges in violation of the terms of assignment in future by following proper procedure. ------------------------------------------- - (C.V.NAGARJUNA REDDY, J) 11th July 2008 RRB/MNR (1) AIR 1959 SC 308