THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.3635 OF 2004 Date: 09.12.2010 Between: The Defence Housing Co-operative Society (OR) Limited ......petitioner AND Mandal Revenue Officer and another ......Respondents The Court made the following:- THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.3635 OF 2004 ORDER: In this writ petition, petitioner, which is a cooperative society registered under the Andhra Pradesh Cooperative Societies Act, 1964, questioned memo bearing No.A/4709/1996, dated 20.02.2004, by which, the first respondent – Mandal Revenue Officer, Malkajgiri Mandal, Secunderabad, directed it to surrender the excess land to an extent of Ac.1.16 guntas within a week, and stated that if it failed to do so, necessary action would be taken in accordance with law. 2. The members of the petitioner society are Ex-service men, serving defence personnel and widows/legal representatives of the deceased service men. 3. It is stated that land to an extent of Acs.112.03 guntas covered by survey No.218/1 of Malkajgiri Village, Hyderabad East Taluk, Hyderabad District, was allotted to the petitioner society as early as in 1964 by the Government of Andhra Pradesh vide G.O.Ms.No.1100, dated 16.07.1964 on payment of consideration of Rs.200/- per acre. After allotment of the land, the petitioner society utilized the same by obtaining approval of layout from the then Malkajgiri Gram Panchayat vide layout No.328/3, dated 29.01.1966. It is further stated that most of the members have constructed houses and living therein. 4. In the approved layout, open spaces were left towards parks and one such open space to an extent of 3643 square yards, basing on the resolution passed by Malkajgiri Municipality, was utilized for the purpose of constructing Police Station and also Mandal Revenue Office. When such open space was utilized for the purpose of constructions, there was no elected body for the petitioner society, as such, the Defence Colony Residents Welfare Association, Hyderabad, filed W.P.No.18276 of 1998 before this Court questioning the action of the respondents therein in using the open space left towards parks for the purpose of making constructions for Police Station and Mandal Revenue Office. When the said writ petition was dismissed, the said Association filed Writ Appeal No.1569 of 1998, during pendency of which, the petitioner society was impleaded as party respondent No.7 therein as elections were conducted to its Managing Committee. In the said writ appeal, at one point of time, there was an offer by the District Collector, Ranga Reddy, to provide equivalent land in very same survey number. But, when it was pleaded that the society itself is in possession of excess land that is more than what has been allotted to it, without accepting such contention advanced on behalf of the District Collector, the matter was adjourned further for impleading the State of Andhra Pradesh as a party respondent by recording a finding that the District Collector has no authority in law to alienate the land, which is in urban agglomeration. 5. It is further stated that the State of Andhra Pradesh filed an affidavit in terms of the order, dated 24.03.2003 passed in Writ Appeal No.1569 of 1998. In view of the statement made by the Government that it has already taken decision to make available an extent of 3643 square yards in survey No.218/1 outside the layout of the society because the extent of the land, which was left for parks, was utilized for construction of Police Station and Mandal Revenue Office, the Division Bench of this Court vide its judgment, dated 28.07.2004, disposed of W.A.No.1569 of 1998 directing the District Collector to ensure delivery of possession of such excess land to the petitioner society. It is further stated that pursuant to such directions, possession was delivered to the petitioner society. When the writ appeal was pending, the impugned memo was issued by the first respondent alleging that the petitioner society was allotted only land of an extent of Acs.112.03 but it is in possession of an extent of Acs.113.19 guntas of land i.e. excess to an extent of Ac.1.16 guntas than allotment as per the survey report of the Assistant Director, Survey and Land Records, Ranga Reddy District, and accordingly, directed the petitioner society to surrender the excess land to an extent of Ac.1.16 guntas of land. 6. The impugned memo is questioned mainly on the ground that the petitioner society is not in possession of any excess land than allotted land to an extent of Acs.112.03 guntas only. It is stated that no survey was conducted by issuing any prior notice and no opportunity was given to the petitioner and that the impugned memo was issued only to coerce the petitioner society for withdrawal of the proceedings, which were pending before this Court in Writ Appeal No.1569 of 1998. 7. It is submitted by the learned counsel for the petitioner society that as the allotment was made in 1964 and when the land was utilized by obtaining the layout from the then Malkajgiri Gram Panchayat and already plots were allotted for making constructions, it is not open to the respondents to allege that the petitioner society is in possession of excess land at this point of time, that too, based on the alleged survey conducted by the Assistant Director, Survey and Land Records, Ranga Reddy District, which itself is without notice to the petitioner society. 8. Although the writ petition is of 2004, no counter affidavit is filed by the respondents. But, it is argued by the learned Government Pleader for the respondents that as much as the survey conducted by the Assistant Director of Survey and Land Records, Ranga Reddy District revealed that the petitioner society is in possession of the land more than the land allotted to it, impugned memo is issued for return of the land to an extent of Ac.1.16 guntas. 9. I have perused the copies of the interim order, dated 24.03.2003, and the final order, dated 28.07.2004 passed in Writ Appeal No.1569 of 1998. From a perusal thereof, it is evident that when there was a move from the Government of Andhra Pradesh, who is the respondent therein, for allotting the land equivalent to the land, which was utilized for the purpose of constructing Police Station and Mandal Revenue Office, it was pleaded that the petitioner society itself is in possession of excess land than the land allotted to it in 1964. The Division Bench of this Court has not accepted the same and further, directed the State of Andhra Pradesh, which alone is the authority to alienate the land, to file an affidavit in the above said writ appeal. But, as the Government itself came forward to make available land i.e., an extent of 3643 square yards outside the layout, which is equivalent to the land, which was utilized for the purpose of constructing Police Station and Mandal Revenue Office, the Division Bench of this Court disposed of the writ appeal. 10. It is to be noticed that based on the representation of the petitioner society itself, the survey was conducted in 1990 and the Mandal Surveyor, Malkajgiri, submitted a report, dated 19.04.1990 to the Mandal Revenue Officer, Malkajgiri. A perusal of the said report clearly indicates that the petitioner society is within the land allotted to it and there are no encroachments by it. If that be so, it is not known on what basis, the allegations were made on the petitioner society that it is in possession of excess land to an extent of Ac.1.16 guntas. When the allotment of land was made in 1964 and the petitioner society utilized such land by obtaining approval of the layout from the local authority, the respondents ought not to have taken steps alleging that it is in possession of excess land, without issuing notice to it, based on the ex parte survey report of the Assistant Director, Survey and Land Records, Ranga Reddy District. Except such report, which is stated to have been prepared without issuing notice to the petitioner society, there is no other basis for issuing the impugned memo. It appears, as pleaded by the petitioner society, the impugned memo is issued only to coerce the petitioner society when it questioned the action of the respondents in utilizing an extent of 3643 square yards of land, which is earmarked for parks, for the purpose of construction of Police Station and Mandal Revenue Office. It is also to be noticed that when the plea of the respondents that the petitioner society is in possession of excess land, was not accepted by the Division Bench of this Court, it is not open for the respondents to issue impugned memo directing the petitioner society to surrender the excess land. As much as huge extent of land was allotted to the petitioner society way back in 1964 without marking any area, based on the ex parte survey report of the Assistant Director, Survey and Land Records, Ranga Reddy, no directions could have been issued to the petitioner society to surrender the land to an extent of Ac.1.16 guntas. Such action of the respondents is not only illegal and arbitrary but also in violation of principles of natural justice. For the aforesaid reasons, the impugned memo is liable to be set aside. Accordingly, the Writ Petition is allowed and memo bearing No.A/4709/1996, dated 20.02.2004, issued by the 1st respondent- Mandal Revenue Officer, Malkajgiri, is hereby quashed. No order as to costs. ____________________ R.SUBHASH REDDY, J 9th December 2010 Ivd/kvni