THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.2904 of 2003 March 04, 2011 Between: N.Deepthi, D/o.Sri Rajeshwar Reddy and others ... Petitioners And The Mandal Revenue Officer, Makloor, Nizamabad Mandal And another ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.2904 of 2003 ORDER: The petitioners, who are 18 in number, filed the instant writ petition assailing the order dated 18.1.2003 of the first respondent. By the said order, in purported exercise of the power under Section 4 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1971 (the PoT Act), the first respondent ordered resumption of the land in the possession of the petitioners. The brief fact of the matter is as follows. In September, 2001 with a view to establish an educational institution, the petitioners purchased various extents of land comprised in S.Nos.224 (part) and 225 (part) of Mamidipalli village of Makloor Mandal in Nizamabad District. They allege that their vendors, Smt.Tara Chowdary and others, had been the titleholders of the land for over four decades. They had also obtained pattadar pass books (PPBs) and title deeds (TDs) from the first respondent. After purchase of the land, the petitioners approached the first respondent, and by proceedings dated 09.11.2001 the mutation was sanctioned in their favour. Under the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (the RoR Act), the petitioners allege that when they wanted to implement the project, the Sarpanch and village elders demanded abnormal amounts. When the same was denied, they complained to the first respondent, who initiated action under the PoT Act. By proceedings dated 11.1.2002, the first respondent ordered resumption of the land without issuing any notice to the petitioners. The same was assailed in W.P.No.6691 of 2002. By an order dated 11.4.2002, this Court set aside the resumption order dated 11.1.2002, while directing the first respondent to issue notice to the petitioners and decide the controversy. The first respondent issued notice dated 28.10.2002 in Form No.I under Rule 3 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Rules, 1977 (the PoT Rules). The petitioners submitted explanation claiming that they are not Government assigned lands, that there is no prohibition of alienation of the lands as they are patta lands and that the notice issued is contrary to the official records. They also allege that they made enquiries and found that there are no proceedings of assignment of the lands. Further the petitioners submitted an application on 12.11.2002 requesting for certified copies of the assignment orders. In response thereto, by a memo dated 02.12.2002, the petitioners were informed by the first respondent that the assignment file was not traced in his office as well as in the office of the Mandal Revenue Officer, Nizamabad (MRO). In spite of the same, the first respondent passed the impugned order. It is the further case of the petitioners that after disposal of the earlier writ petition by this Court, the second respondent, namely, the Revenue Divisional Officer, Nizamabad (RDO) initiated suo motu proceedings under the RoR Act and by proceedings dated 07.2.2002 cancelled the entries in the record of rights. The petitioners questioned the same in W.P.No.7152 of 2002. This Court allowed the said writ petition on 05.9.2002 quashing the proceedings of the RDO. It is also the further case of the petitioners that the land purchased by the petitioners was not mentioned in the Prohibitory Order Book (POB) Register which conclusively belies the claim of the first respondent that the land purchased by petitioners is assigned land. The petitioners, therefore, would contend that the impugned order is arbitrary and illegal. They also contend that the condition of inalienability was imposed through G.O.Ms.No.1406, dated 25.7.1958 and, therefore, the provisions of Section 3 of the PoT Act cannot be invoked by the first respondent. The counter affidavit of the first respondent is to the following effect. The land admeasuring Acs.9.08 guntas in S.No.224 and Acs.10.31 guntas in S.No.225 are classified as Kariz Khata Sarkari in Sesala Pahanis for 1955-58. By proceedings No.A3/11094/58, dated 17.1.1959 the then Tahsildar, Nizamabad assigned land in S.No.224 (Acs.4.21 guntas) to Sri Begari Pochiga, and the land in S.No.224 (Acs.4.20 guntas) to Sri Asad Linga. The original assignment file is not traceable, but faisal patti reveals the land was assigned to those persons subject to conditions in G.O.Ms.No.1406, dated 25.7.1958. The land assigned is heritable but not alienable and it shall be brought into cultivation within three years from the date of the assignment. The petitioners purchased the land from the original assignees in contravention of Section 3(3) of the PoT Act. The Village Sarpanch and other elders submitted a representation on 12.12.2001 informing that the petitioners purchased assigned lands. As directed by the MRO, the Mandal Surveyor conducted enquiry and submitted a report. Therefore the notice dated 28.12.2001 in Form No.I was issued to the petitioners. As the whereabouts of the petitioners were not known, the notice was affixed on the conspicuous part of the land. Thereafter the orders were passed in proceedings No.B/5821/2001, dated 11.1.2001. The same was set aside in W.P.No.6691 of 2002. Thereafter after issuing the notice, the impugned order was passed. The MRO does not dispute other allegations including the allegation that by memo dated 02.12.2002 the MRO informed that the original assignment file is not traceable in the office. The Counsel for the petitioners submits that the land in S.Nos.224 and 225 is private patta land; it is not Government assigned land and, therefore, the first respondent has no jurisdiction under the PoT Act to resume the land. He relies on the admission of the first respondent that the assignment file is not traceable either in the office of the first respondent or in the office of the MRO. He nextly points out that even in the POB, the two survey numbers were not mentioned and, therefore, it cannot be treated as an assigned land. Per contra, the Assistant Government Pleader, Ms.M.Shiva Jyothi, while teiterating the respondents’ position as disclosed in the counter affidavit, submits that the petitioners filed the instant writ petition without availing alternative remedy; that the question involved is one of the facts and that the impugned order was passed based on the faisal patti. The matter was heard on 10.12.2010. As no documents are annexed to the counter affidavit, though a mention is made therein, this Court directed the Assistant Government Pleader to produce the records. The matter was directed to be listed under the caption ‘For Judgment’. When the matter appeared on 31.12.2010, the Assistant Government Pleader again sought time for production of the records. Therefore the matter was adjourned. On 20.1.2011 another Assistant Government Pleader for Revenue, Ms.Naseem Ara, appeared at 10.30 am and stated that the MRO is coming from Nizamabad with relevant records and sought for a pass over of the matter. The method of dealing with the case by the office of the Government Pleader for Revenue (Assignment) is highly objectionable. However, in the interest of justice, the matter was passed over again. When the matter was called again at 2.15 pm on 20.1.2011, another Assistant Government Pleader, Ms.B.L.Prasuna, appeared and informed the Court that the MRO is on the way and sought another pass over. The very fact that one Assistant Government Pleader after another by turn are appeared to inform that the MRO is on the way with records, suggests that the Government Pleader and his Assistants want this Court to wait for an MRO, who already disobeyed the command issued by this Court for production of records while issuing Rule nisi. The Court cannot be made to wait for respondent to produce evidence. In spite of showing lot of indulgence, the respondents or their Government Pleader/Assistant Government Pleaders did not evince interest in proper prosecution of the case. Therefore, this Court declined any further pass over and reserved the matter. The PoT Act empowers the Tahsildar to resume the assigned land if it is transferred by the assignee in contravention of Section 3(1) thereof. To be able to pass orders under Section 4 of PoT Act resuming the land, it must necessarily be shown that the land sought to be resumed is an assigned land. The petitioners challenge the jurisdiction of the first respondent on the ground that the land is private patta land and is not Government assigned land. In the counter affidavit, an allegation is made that the land in S.No.224 admeasuring about Acs.4.20 guntas each was assigned to two persons vide proceedings No.A3/11094/58, dated 17.1.1959. Though it is alleged that the same is mentioned in faisal patti, the MRO admits that, “the original assignment file is not traceabla”. This clearly shows that even without verifying the records the MRO passed orders not once but twice. Initially an order was passed on 11.1.2002. The same was set aside for want of notice. Even thereafter the MRO did not make efforts to trace the file but passed the impugned based on a complaint given by the Sarpanch and the elders. Therefore, this Court is convinced that the exercise of jurisdiction by the MRO is vitiated by the absence of jurisdictional facts. The impugned order, therefore, cannot be sustained. This Court has given ample opportunity to produce the records. Even though the matter is pending for more than seven years, no evidence is let in by the respondents. Therefore, the plea of the respondents cannot be accepted. I n Letter sent v Collector and District Magistrate[1], a Division Bench considered the issue whether the lands which are granted patta under LAONI Rules, 1959 can be resumed under the provisions of the PoT Act treating them as assigned lands. Referring to the provisions of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, LAONI Rules, 1950 and the PoT Act, the Division Bench indicated the necessity of giving particulars of the land before initiating action under the PoT Act. The relevant observations are as follows. Whenever any proceedings are to be initiated by the revenue authorities for resumption of the land, they have to specify – a) The nature of occupancy rights granted, namely, whether occupancy rights were granted on collection of market value of free of market value in favaour of the landless poor persons; b) Whether the said land falls within the notified area restricting inalienability as per the notification issued under Section 58-A of Telangana Area Land Revenue Act; c) Whether Act No.9 of 1977 applies to the nature of occupancy right/ assignment granted; d) If any changes in the revenue records are effected, reasons for change from the original entries in khasra pahani of 1954-55 or subsequent to the same in the notice to be issued for enabling them to make an effective explanation to meet the contentions and submit their explanation to the action proposed. Unless such particulars are furnished for submitting an effective explanation, lands cannot be resumed merely basing upon the revenue entries so made. The impugned order was preceded by notice in Form No.I issued to the petitioners. It appears that no such notice was issued to the vendors of the petitioners. Be that as it is, either in the notice in Form No.I or in the impugned order the particulars of the land are not mentioned except making an allegation that the petitioners are found to have purchased the assigned lands specified in the schedule therein. Thus the MRO did not give the essential particulars before exercising jurisdiction under Section 4 of the PoT Act. This is also yet another infirmity, which vitiates the impugned order. In the result, for the above reasons, the writ petition is, accordingly, allowed, setting aside the impugned order. This Court observes that if the first respondent is able to trace the original assignment file, which would conclusively show that the land was assigned to landless poor persons, it shall be open to him to take necessary action in accordance with law, and keeping in view the judgment of this Court referred to herein above. The petitioners shall be entitled to the costs of this writ petition. ________________ (V.V.S. RAO, J) March , 2011 YS [1] 2008 (5) ALD 626 : 2008 (5) ALT 313