IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 7028 of 2008 Between: Bathini Mrugasira Trust, Sy.NO.49, Katedan (V), Rajendra Nagar Mandal, Rangreddy District rep. by its President Mr. B. Viswanatham Goud ..... PETITIONER AND 1 Tahasildar and Deputy Collector, Rajendranagar Mandal, Rangareddy District, Govt. of A.P. 2 The Collector, Rangareddy District, Govt. of A.P., Lakdi-ka-pool, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ of Mandamus, or any other appropriate writ, order or direction declaring the Lr.No.B/246/2008, dt. 17.03.2008 of the 1st respondent in passing orders for resumption of land as illegal, arbitrary, violation of principles of natural justice and set asdie the same and pass Counsel for the Petitioner:MR.AMARNATH GOUD THODUPUNURI Counsel for the Respondent No.: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 7028 of 2008 29-04-2009 Oral Order: Heard the learned counsel for the petitioner and the learned Government Pleader for Revenue for the respondents. The deponent is the President of the Trust asserts that the State Government by an order issued in G.O.Ms.No. 49 Revenue (Assignment-V) Department dated 18-01-2001 (for short G.O.Ms.No.49’) alienated Ac.05-00 of Government land in survey No. 49, Katedan village, Rajendranagar Mandal, Ranga Reddy District to the petitioner-trust, free of cost for the purpose of growing medicinal herbs and allied purposes of the Trust for providing fish medicine. Consequent on the above order, the District Collector, Ranga Reddy District by a proceeding dated 24-01-2001 directed the Mandal Revenue Officer, Rajendranagar Mandal to handover possession of the land to the petitioner and to incorporate relevant entries in the revenue records. The revenue officials thereupon conducted a panchanama and handedover Ac.05-00 of land to the petitioner on 07-11-2001. The petitioner claims to have put the allotted land to use for the purpose for which the allotment was made and to have also constructed certain structures thereon for office, stores etc., The petitioner also claims to have dug a bore well in the land and have also grown herbs and shrubs like Tulsi etc., On 13-02-2008 the 1st respondent issued the impugned notice that reads as under: NOTICE The Government in G.O.Ms.No. Rev. Dated.. have alienated an extent of Ac.5-00 gts. of Government land to you in Sy.No. 49 situated at Kattedan village, Rajendranagar Mandal along with conditions for the grant of state lands for the purpose of fishponds. One of the conditions is that the land allotted shall be utilized for the purpose for which it is intended. On verification by the Mandal Revenue Inspector, Rajendranagar Mandal, it is noticed that the requisition authority has not utilized the land to an extent of Ac. 5-00 gts. and the same is kept vacant on the ground. As per condition No. 11 of the conditions stipulated, it is clearly indicated that in the event of failure to utilize the land for the purpose it was allotted, the Govt., shall be at liberty to resume the land and re-enter on it and the land shall thereupon vest absolutely in the Government. Since you have not put the entire land allotted to optimum use and an extent of Ac.5-00 gts. land is found vacant and lying idle, it is hereby proposed to resume the vacant land as per the conditions. Therefore, you are hereby directed to hand over the possession of the vacant land within a week from the date of receipt of this notice failing which the Mandal Revenue Inspector, Rajendranagar Mandal will resume back the said vacant land to the Government for utilizing the same for public purpose.” The petitioner submitted a representation on 27-02- 2008 stating that the grounds on which the impugned action for resumption is taken is irrational as the land was never allotted for the purpose of fish ponds. The petitioner represented that the allotment was for the purpose of growing herbs of medicinal value; that herbs were in fact grown; that the petitioner-trust never raised fish, procures fish nor sells the same and that the action of resumption is also mala fide i.e., for the purpose of taking over the land from the petitioner and to allot to real estate businessmen like M. Prabhaker Reddy and others who are neighboring land owners. The 1st respondent by the impugned order dated 17- 03-2008, in purported exercise of power under Rule 6 of the A.P. (T.A.) Alienation of State Land and Revenue Rules, 1975, ordered resumption of the lands. In this order, the 1st respondent eschewed the allegations set out in the notice dated 13-02-2008 (that the petitioner failed to utilize the land for fish ponds) and proceeded to record that since the petitioner-trust did not put the land to “optimal use” and an extent of Ac.05-00 of land is found vacant and idle even after the lapse of six years, it is proposed to resume the land as per the conditions. Despite the representation of the petitioner dated 27-02-2008 that the petitioner had grown shrubs in the land, the 1st respondent’s order dated 17-03-2008 does not show that pursuant to the petitioner’s representation there was an inspection of the assigned land and it was found that there was no utilization. Even without verification of the petitioner’s defense, the 1st respondent proceeded to pass the impugned order dated 17-03-2008 resuming the land. In the counter affidavit filed by the 1st respondent there is no mention whatsoever about the first notice dated 13-02- 2008 having been issued on the basis that the petitioner failed to use the land for fish ponds. The counter affidavit does not clarify why the fishponds issue was eschewed for the present allegation (in the impugned order) that the petitioner failed to make optimal use of the land. In this counter the 1st respondent states that during the course of inspection of the petitioner’s land, the 1st respondent noticed that the land was not utilized for the purpose for which it was allotted and was kept vacant. The counter is silent as to when the land was inspected; whether after the notice to the petitioner and what was the finding recorded in the inspection. In paragraph No.3 of this counter after stating that the land was resumed, it is stated that the 2nd respondent by an order dated 24-03-2008 handed over land in an extent of Ac.03-00 to the M.D., A.P. Vikalangula Co-operative Corporation and another extent of Ac.02-00 of land to the A.P. Mineral Development Corporation. The entirety of the proceedings initiated by the 1st respondent culminating in the order dated 17-03-2008 is perverse. The notice dated 13-02-2008 is a casual and carelessly drawn up instrument. Neither the number nor the date of the Government Order under which land was assigned to the petitioner, is stated. The notice also proceeds on the assumption that the violation by the petitioner was in not putting the assigned land to use for fishponds, a purpose which has no mention either in the order of assignment in G.O.Ms.No. 49 nor in any subsequent proceedings. The issue of a notice to the petitioner for resumption of the land assigned earlier is a solemn exercise of due process. The 1st respondent may not adopt a casual approach to the exercise of such function. The eventual order dated 17-03-2008 totally eschews the ground on which the notice dated 13-02-2008 is issued. Notwithstanding the petitioner’s representation dated 27-02-2008 that it has in fact grown medicinal plants, the order dated 17-03-2008 does not state nor disclose that there was an inspection pursuant to the notice nor earlier thereto. It is only in the counter affidavit that the 1st respondent stated that the 1st respondent’s inspection of the land discloses that there were no plants raised in the assigned land by the petitioner. As repeatedly pointed out by the Supreme Court an executive order will have to stand by itself and cannot be supplemented by a counter affidavit vide Commr., of Police v., Gordhandas (AIR 1952 SC 16). On a careful consideration of the show cause notice dated 13-02-2008, the petitioner’s response thereto on 27-03-2008 and the final order by the 1st respondent dated 17-03-2008, in the considered view of this Court, the 1st respondent proceeded to record a violation by the petitioner of the term of assignment of land to it, in careless and negligent manner without application of mind. The order impugned cannot be sustained and must be quashed. As the Government had issued the order of assignment in G.O.Ms.No. 49, there must be an order canceling the order to precede the resumption. No such order is discernable nor is pleaded by the respondents. In the totality of the circumstances the order of the 1st respondent dated 17-03-2008 is quashed. For the casual and negligent manner in which the 1st respondent passed the impugned order, this Court is constrained to impose costs in an amount of Rs.5,000-00 (Rupees five thousand only) of which Rs.1,000-00 (Rupees one thousand only) shall be paid to the petitioner and Rs.4,000-00 (Rupees four thousand only) to the Secretary, Andhra Pradesh State Legal Service Authority, Hyderabad within a period of four weeks from the date of receipt of a copy of this order. It is however open to the State Government to ascertain the officer who had so casually exercised a public function thereby putting the petitioner to trauma of this litigation apart from generating an avoidable litigation and to take steps to recover the amount of costs from such officer or to initiate appropriate administrative measures for training officers for ensuring better decision making in future. The writ petition is allowed with costs as above ____________________ GODA RAGHURAM, J Dated: 29-04-2009 Pvks