*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION No.11995 of 1991 % 14-11-2006 # Telladarla Obanna @ Obaiah ...PETITIONER Vs. $ The Secretary to Government of Andhra Pradesh, Revenue Department, Secretariat, Hyderabad And others ...RESPONDENTS ! COUNSEL FOR PETITIONER: MR.S.V.BHATT ^ COUNSEL FOR RESPONDENTS 1 TO 4: A.G.P. FOR REVENUE (ASSIGNMENT) COUNSEL FOR RESPONDENTS 5 & 6: MR.ADINARAYANA BOMMARAJU REPRESENTING SRI SATYANRAYANA NIMMAGADDA <GIST >HEAD NOTE: ? CASES REFERRED: 1. AIR 2003 SC 1706 (paras 5 and 6) 2. 2006(6) ALD 304 = 2006(6) ALT 90 3. AIR 1995 SC 464 = (1995)1 SCC 189 THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.11995 of 1991 14.11.2006 Between: Telladarla Obanna @ Obaiah, S/o.Obaiah … Petitioner AND The Secretary to Government of Andhra Pradesh, Revenue Department, Secretariat, Hyderabad And others … Respondents THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.11995 of 1991 ORDER: This writ petition is filed assailing the orders of the first respondent in G.O.Ms.No.751 Revenue (Assn.IV) Department, dated 28.8.1991, as illegal, mala fide, politically motivated at the instance of respondents 7 and 8, and being violative of Articles 14, 19(1)(g), 21 and 300-A of Constitution of India. A consequential direction is also sought to forbid the respondents from proceeding in any manner in pursuance of the said proceedings. The writ petition was dismissed for default on 12.3.2004. The petitioner filed application being WPMP No.19283 of 2005 seeking to set aside the order dismissing the writ petition for default. By an order dated 12.7.2005, this Court restored the matter. That is how the matter is again appeared before this Court. The land admeasuring Acs.4.00 in survey No.165/3 situated at Kolumulapalli village of Chinthakomma (CK) Dinne Mandal in Kadapa District was assigned to Obaiah on 20.6.1961. Obaiah allegedly cultivated the land till 1979 when he died. Thereafter, the petitioner, who is the son of the original assignee and who is also working as electrical mechanic, was allegedly cultivating the land. In 1989, respondents 5 and 6 who are residents of Lakkireddipalli village raised a dispute. Alleging that they tried to interfere with the possession, the petitioner filed a suit for injunction being O.S.No.674 of 1989 on the file of the Court of the III Additional District Munsif, Kadapa. Respondents 5 and 6 also filed a suit for the similar relief being O.S.No.723 of 1989. While the above suits were pending, respondents 5 and 6 also made representations to the first respondent on 19.3.1990 and 16.5.1991 seeking cancellation of the assignment made in favour of the petitioner. The Government treated the same as revision and suspended the assignment granted by the Tahsildar in favour of the petitioner. Aggrieved by the same, the petitioner filed a writ petition being W.P.No.6826 of 1990 before this Court. The said writ petition was dismissed in limine on 08.5.1990. The petitioner then filed W.A.No.642 of 1990. By an order dated 22.8.1990, Division Bench of this Court disposed of the writ appeal directing the first respondent to dispose of the application made by the respondents 5 and 6 and other villagers of Kolumulapalle Village. The Government thereafter passed the impugned order on 28.8.1991, aggrieved by which, the present writ petition is filed. Learned Counsel for the petitioner submits that cancellation of assignment after lapse of thirty (30) years is arbitrary and illegal. Secondly, he would urge that the subordinate revenue officials at the District level have reported that there is no graveyard or Idga in survey No.165/3 and that the said land is fit for cultivation but the Government failed to consider the same. Thirdly, he would urge that there is no cart track passing through survey No.165/3 and the Government passed orders without application of mind. Lastly he would urge that the reason for cancellation that it is likely to result communal disharmony and tensions in the village is not germane to exercise of powers of the Government. Opposing the writ petition, learned Assistant Government Pleader for Revenue (Assignment) and the learned Counsel for respondents 5 and 6 submit that the original assignee did not cultivate the land, that he alienated the land to third parties and, therefore, the question of limitation would not arise in exercise of suo motu powers of the Government. They would also contend that the land in survey No.165/3 assigned to the petitioners is adjacent to burial ground and Idga and, therefore, the Government in their discretion thought it fit not to continue the assignment in favour of the petitioner as it would result in communal tensions between two religious groups. As the same is a question of fact, according to the learned Counsel, in a writ petition, the same cannot be decided. In support of their contentions, they relied on a decision of the Supreme Court in Collector v P.Mangamma[1] and a decision of this Court in M.Rami Reddy v Special Commissioner of Land Revenue[2]. Two questions that arise for consideration are whether the exercise of power by the Government in cancelling the assignment is vitiated by error in law. Secondly, whether the Government’s decision to cancel the assignment to ensure communal harmony in the village, is a valid ground for cancellation of assignment. As seen from the Government order, the first respondent while considering the memorials of respondents 5 and 6 dated 19.3.1990 and 02.6.1991 as well as record, noticed the following factual matrix. The land in S.No.165/3, extent 4.00 acres of Kolumulapalle village was assigned to one Sri Talladarla Obanna, S/o.Obaiah of Lakkireddipalle h/o.Kolumulapalle village vide DKT No.628/1378 dated 20.6.1961 by the then Tahsildar, Cuddapah. There is land adjoined to S.No.165/3 i.e., S.No.165/4 extent 1.30 acres which is classified as “Assessed Waste” and there is “Idga” and tombs in S.No.165/4 but not in S.No.165/3. The land in S.No.165/3 is left waste without any cultivation and there are no pits on the land but it is an even land. There is a rastha (cart track) in S.No.165/4 which is about 0.08 cents leading to the nearby vanka and therefrom a rashta (footpath) which leads to Lakkireddipalle h/o.Kolumulapalle village. There are 250 families consists of a population of 1250 of Muslims in Kolumulapalle village and they used to bury their dead in S.No.165/4 for the last so many years. The above passage would show that the Government was having the all relevant facts before them. Secondly, the assignment in favour of the petitioner was not cancelled because land in survey No.165/3 is Idga/ burial ground. The assignment was cancelled on the ground that there is Idga in survey No.165/4 and burial ground thereat which is adjacent to survey No.165/3. The Government also noticed that there was a cart track passing through the land assigned to the petitioner. The Government also refers to a sketch marked as Ex.P.1. Having regard to the entire material before them, the Government came to the conclusion that assignment of land which is adjacent to a burial ground and Idga is not in public interest having regard to communal tension in the village. In the light of this, the submission of learned Counsel for the petitioner that the Government did not consider entire material and did not apply mind cannot be accepted. The submission that exercise of power after lapse of thirty years cannot be accepted. Para 18 of Board Standing Orders (BSO) was amended by the Government in G.O.Ms.No.912 (Revenue-B) Department dated 02.8.1985, provides revision without any limitation, when the assignment suffers from material irregularity or that the decision was grossly inequitable or that the assignment was obtained by fraud. In a recent judgment in M.Rami Reddy (supra), this Court considered this aspect of the matter and held that when any assignment was obtained by misrepresentation, the authorities are justified in cancelling the assignment at any point of time. I n P.Mangamma (supra), the Supreme Court held that cancellation of assignment cannot be set aside only on the ground that it was passed after thirty years. The Apex Court observed as follows. A reasonable period would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question. … … … … You must have the particular facts of each case established before you can ascertain what is reasonable under the circumstances. Reasonable, being a relative term is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case. The last submission made by the learned Counsel for the petitioner is also devoid of any merit. It is not disputed that the burial ground of the muslims and Idga are in survey No.165/4 which is adjacent to survey No.165/3 and there is a cart track passing through survey No.165/4. There are 250 muslim families with 1250 persons in the village and they are burying dead in survey No.165/4. Therefore, there would be certainly necessity for expansion. If such need is not envisioned and in the event of some dead being buried in the land adjacent to survey No.165/4, it would certainly result in communal tension. One should not forget that Islam treats graves with veneration treating them as holy and sacred. Whether such a ground is germane to the exercise of power by the Government? The answer should be in the affirmative. Whether there is likelihood of law and order situation is a matter for the decision of the Government and Courts are least equipped to scrutinize such issues. Ordinarily, in the decision making by public authority, the religious sentiment of the people should certainly be relevant though not determinative factor. In State of West Bengal v Ashutosh Lahiri[3], the exemption notification permitting slaughter of cows on the occasion of Bakri-Idd was challenged. The Government of West Bengal issued said notification under Section 12 of W.B.Animal Slaughter Control Act, 1950 (Slaughter Control Act). The High Court of Calcutta allowed the writ petition on the holding that the Government had no power to grant such exemption as there was total ban on slaughter of healthy cows and other animals mentioned in schedule under Section 2 of Slaughter Control Act. Inter alia, it was also urged before the High Court that the petitioners, who challenged the notification, were more concerned by Hindu religious sentiment than public interest. The submission was rejected by the High Court. In appeal by the State Government, the Supreme Court agreed with the High Court on the question of maintainability of public interest litigation on religious sentiment and observed as under. In our view rightly so as the writ petitioners representing a Hindu segment of society had felt aggrieved by the impugned exemption granted by the State. They had no personal interest but a general cause to project. Consequently, they had sufficient locus standi to move the petition. Rule 7 framed under the Act, provides that provisions of the West Bengal Animal Slaughter Control Act, 1950, shall not apply to the slaughter of any animal for religious, medicinal or research purpose subject to the condition that such slaughter does not affect the religious sentiment of the neighbours of the person or persons performing such slaughter and that the previous permission of the State Government or any officer authorized by it is obtained before the slaughter. The case of the original writ petitioners before the High Court was based on religious sentiments and, therefore, they had moved this public interest litigation. In these circumstances, no fault could be found with the decision of the High Court recognizing locus standi of the original petitioners to move this public interest litigation which we have found to be well justified on merits. In the result, for the above reasons, this Court does not find any error apparent on the face of record and the writ petition is accordingly dismissed with costs. _____________ November 14, 2006. (V.V.S.RAO, J) NOTE: L.R. Copy be marked. (By order) YS [1] AIR 2003 SC 1706 (paras 5 and 6) [2] 2006(6) ALD 304 = 2006(6) ALT 90 [3] AIR 1995 SC 464 = (1995) 1 SCC 189