IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND NINE PRESENT: THE HON'BLE SMT. JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL NO : 2073 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 23-04-2002 in W.P.No.12093 of 2000 on the file of the High Court.) Between: 1 The District Collecter, Khammam, Khammam District. 2 The Revenue Divisional Officer, Kothagudem, Khammam District. 3 The Revenue Divisional Officer, Khammam, Khammam District. ..... APPELLANTS AND M.V.M. Choudary, S/o Appa Rao, R/o H.No.4-10, Lakshmidevipalli, Kothagudem, Khammam District. .....RESPONDENT Counsel for the Appellants : GP FOR REVENUE Counsel for the Respondent : MR.M.R.K.CHOWDARY The Court made the following : HON’BLE SMT. JUSTICE T. MEENA KUMARI & HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL No.2073 of 2002 JUDGMENT: (per Hon’ble Sri Justice Vilas V. Afzul Purkar) This appeal is filed by the State against the order of the learned Single Judge allowing the writ petition filed by the respondent herein. The brief facts are as follows: The respondent herein (writ petitioner) submitted a declaration under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as ‘the Act’) relating to Agricultural Lands held by him. By an order dated 29.01.1981, the Primary Tribunal determined the holding of the respondent and found that he holds an excess land beyond the ceiling limit to the extent of 1.55 Standard Holdings of lands, which is equivalent to Acs.77.50 cents. However, on appeal by the respondent/declarant in L.R.A.No.31 of 1988, dated 29.01.1981, the said order of the Primary Tribunal was set aside and the matter was remanded back for fresh consideration. After remand, the Primary Tribunal passed a fresh order dated 03.01.1995 holding the respondent/declarant as a non-surplus landholder. The Government preferred an appeal against the said determination in LRA.No.118 of 1995, which was dismissed by the appellate Tribunal on 30.12.1995. The said order has attained finality and as such, the respondent is not holding any excess land and regarding which there is absolutely no controversy. While the order of the Primary Tribunal in the first instance was passed, it appears that before the appellate Tribunal considered and reversed the said order, the excess land was taken possession of and the said land was said to have been distributed by the Government to third parties. It is on the aforesaid ground that the restitution in favour of the respondent was being resisted. The respondent/declarant, therefore, approached this Court by Writ Petition No.12093 of 2000 and under the impugned order, learned Single Judge has allowed the Writ Petition directing the appellant herein to take appropriate steps to allot the land to the respondent herein of the equivalent value and put the respondent herein in possession thereof, within a period of two months from the date of receipt of a copy of the order. It was also made clear that their failure to do so within the stipulated time, will make them liable to pay mesne profits and liberty was granted to the respondent to institute necessary proceedings for ascertainment and recovery of mesne profits. The State has preferred this appeal and by order of this Court dated 24.12.2002, the appeal was admitted and interim suspension was granted. We heard the learned counsel for Revenue and Sri M.R.K.Chowdary, learned Senior counsel appearing for the respondent. Learned Government Pleader does not dispute the fact that the declaration of the respondent has attained finality and as per the said determination, the respondent is a non-surplus holder. If any land of the respondent/declarant, which is taken over towards surrender of excess land, therefore, has necessarily to be restituted back to the declarant. The said position, therefore, cannot be disputed. However, the learned Government Pleader has placed reliance on the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Amendment Act, 1977 and in particular, the provisions of Proviso 2, sub section 5 of Section 7 is relied upon by the learned Government Pleader to contend that when it is not feasible to restore the land back to the declarant, the declarant shall be entitled to receive the amount in respect of such land as if notification under sub section (1) of Section 4 of the Land Acquisition Act, 1894 has been issued. The said proviso of which, the reliance is placed by the learned Government Pleader is extracted as under for the sake of convenience: “(5) Where, as a result of the fresh determination of excess land or approval of fresh surrender of excess land or selection of the land to be surrendered in accordance with the provisions of the principal Act as amended by this Act, any land vested in the Government under Section 11 or the principal Act is to be retransferred to the person who surrendered such land, the land shall, subject to such rules as may be prescribed, be retransferred to such person on repayment of the amount paid to him by the Government in respect of that land, and where such land was allotted or transferred to any person in accordance with the provisions of Section 14 of the principal Act prior to the said date, it shall be lawful for the District Collector to resume the land from the person to whom the land is so allotted or transferred and in lieu thereof allot or transfer to the allottee or transferee any other land vesting in the Government, subject to the provisions of Section 14 aforesaid: Provided that where the District Collector considered that the resumptions of such land is likely to cause undue hardship to the allottee or transferee thereof, he shall, subject to the approval of the Government, pay to the person, who is entitled to receive the amount in respect of the land under the principal Act, in lieu of retransferring the land, a sum equal to the amount that would have been payable for such land as if a notification under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 had been issued for the acquisition of that land on the first day of January, 1975, after deducting the amount already paid to him in respect thereof. Learned Single Judge has already considered the aforesaid aspect and has already found that the appellants are statutorily duty bound to restore back the possession to the respondent inasmuch as he does not hold any excess land. The title or possession of the State to such land cannot be justified. Further, merely because the allottees of the Government are in possession by itself cannot make the restitution not feasible. At any rate, there is no material before us to come to a conclusion that undue hardship will be caused if the restoration of possession is ordered. However, as directed by the learned Single Judge, the appellants are either bound to restore the land or pay compensation as provided under Land Acquisition Act. In the absence of any material to hold ‘undue hardship’ proviso above has no application. State cannot take advantage of situation created by it. It is also open to the Government to provide an alternative land of equal value to the respondent as directed by the learned Single Judge. Viewed it from any angle, the impugned order of the learned Single Judge is not unexceptionable and there is no warrant for interference there with. Hence, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the Writ Appeal is dismissed. No costs. ______________________ T. MEENA KUMARI, J ___________________________ VILAS V. AFZULPURKAR,J 1st April 2009 Dvs/Kh HON’BLE SMT. JUSTICE T. MEENA KUMARI & HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL No.2073 of 2002 (Judgment of the Division Bench delivered by Sri Justice Vilas V.Afzulpurkar) Dated 1st April, 2009