IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 25734 of 2002 Between: Smt K.Harijana Anjanamma, w/o K.Basappa, R/o Isvi village, Adoni (M), Kurnool District ..... PETITIONER AND 1. The Joint Collector & Addl. District Magistrate, Kurnool. 2. The Revenue Divisional officer, Adoni, Kurnool Dist. 3. The Mandal Revenue Officer, Adoni, Kurnool Dist. 4. Kuppaganti Harijana Laleppa, s/o Shaikanna, R/o Isvl Village, Adoni (M), Kurnool District .....RESPONDENTs 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 issue a writ, order or direction, more in the nature of writ of Certiorari, calling for the records in proceeding Rc.No. E2/3456/98, on the file of the Joint Collector & Addl. District Magistrate, Kurnool, the 1st respondent herein, and consequently quash the order dt 23.10.2002 and consequently set aside the order dt 27.5.98 in D.Dis. (K)554/97, on the file of the 2nd respondent, and consequently dismiss the appeal filed by the 4th respondent herein dt 27.1.97 and pass such other order or orders as may deed fit and proper in the circumstances of the case Counsel for the Petitioner:MR.V.HARI HARAN Counsel for the Respondent No.: GP FOR ASSIGNMENT The Court made the following : THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 25734 OF 2002 ORAL ORDER: The orders, dated 23.10.2002 of the 1st respondent and of the 2nd respondent dated 27.5.1998 are challenged herein. Ac.5.11 cts, of agricultural land in Sy. No. 409/84 of Isvi (v) of Adoni(m), Kurnool District was assigned in favour of Kuppaganti Timmappa in December 1954. Timmappa died in 1967 leaving behind his wife Anjanamma and a son Basappa (petitioner’s husband) and a second wife Santhamma and a daughter through her, Ratnamma. The first wife of Timmappa - Anjanamma died in 1983. On her death the 2nd wife Santhamma appears to have executed an agreement of sale in favour of the 4th respondent in respect of the land in question, on 11.9.1983 though such alienation was prohibited under the terms of assignment in favour of Timmappa (the original assignee) and Santhamma had no right to alienate the property since Timmappa died in 1967 leaving behind his first wife Anjanamma and a son through his first wife, Basappa (the petitioner’s husband), as heirs. On 28.07.1987 the petitioner’s husband Basappa petitioned the 3rd respondent for restoration of the land from the 4th respondent alleging that Santhamma had no legal right to alienate the property in favour of the 4th respondent and the alienation was also violative of the prohibitions under the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act 1977 (for short ‘the Act’). The 3rd respondent by the order dated 31.10.1998 declared that Santhamma had no right to alienate or transfer the land and consequent on this conclusion and on a finding that the petitioner’s husband Basappa was a landless poor Harijan as well as the legal heir of the deceased Thimmappa, declared that Basappa was entitled to restoration of the land and restored the same to him. Aggrieved thereby the 4th respondent filed W.P.No. 18153/88 challenging the order of the 3rd respondent dated 31.10.1988. This writ petition was disposed of on 1.7.1996 granting liberty to the said respondent to pursue an appellate remedy. Thereafter the 4th respondent appears to have again approached the 3rd respondent. The 3rd respondent by the order dated 17.12.1996 rejected the petition of the 4th and reiterated the earlier decision per the order dated 31.10.1988. Aggrieved thereby the 4th respondent preferred an appeal to the 2nd respondent. By the order dated 27.5.1998 the 2nd respondent without any enquiry as to whether the alienation in favour of the 4th respondent by Santhamma was valid and being carried away by the fact that the 4th respondent after the transfer from Santhamma developed the land, dug a bore well and spent considerable amount on the land, purportedly found authority u/Sec. 3(5) of the Act and declared the 4th respondent eligible for restoration of possession. Accordingly the 2nd respondent set aside the order of the 3rd respondent dated 27.11.1996 (confirming the earlier order dated 31.10.1988). Aggrieved thereby the petitioner carried the matter by way of an appeal to the 1st respondent. The 1st respondent out of thin air recorded a finding that in 1983 Santhamma and Basapa (the petitioner’s husband) had sold the property in favour of the 4th respondent and consequently hold that since the sale was after the coming into force of the Act the benefit u/Sec. 3(5) of the Act was not available. The 1st respondent directed resumption of the land in favour of the Government. The 1st respondent appears to have misdirected itself on the scope of his jurisdiction as the 1st respondent was considering a revision against the order of the 2nd respondent. None of the official respondents eluded to the factual issue that the alienation if at all in favour of the 4th respondent was by Santhamma mistakenly described as the 2nd wife of Timmappa. Timmappa left behind Anajanamma the first wife and a son through the said lady, Basappa – the husband of the petitioner, as heirs. There is no discussion in the entire material on record as to whether by custom or legislative fiat Timmappa was entitled to have two wives, nor is the authority of Santhamma to alienate the property discussed by any of the authorities. There is also no consideration or issue whether a mere agreement of sale would amount to divestiture of title from Timmappa or his legal heirs in favour of the 4th respondent without the need for such an instrument being registered under the provisions of the Registration Act, 1908, in view of the provisions of Sections 17 & 49 of the Registration Act, 1908. Oblivious to the cosmos of these legislative provisions the authorities under the Act proceed to record a litany of facts devoid of any material and came to novel conclusions, order after order. How the 3rd respondent entertained an appeal against an earlier order of the 3rd respondent dated 31.10.1988 and under what provisions and under what law, is not apparent. In any event, by the order dated 31.10.1988 the 3rd respondent had recognized Basappa to be entitled to restoration of possession of the land in question in view of the ‘alienation’ in favour of the 4th respondent from Santhamma being of no legal consequence. This restoration of possession in favour of Basappa is not invalidated by any of the orders of the respondents - either the 3rd respondent’s later order dated 27.11.1996 or the appellate order thereagainst by the 2nd respondent dated 27.5.1998 or the order of the 1st respondent in revision dated 23.10.2002. The petitioner is a legal heir of Basappa being his widow. Her entitlement to the land must be considered by the respondents. A revisional order of the 1st respondent dated 23.10.2002, a quasi judicial order is passed without any roots in legal principle and is therefore unsustainable and is accordingly quashed. The order of the 2nd respondent dated 27.5.1998 is also flawed as it does not consider the relevant principles including inalienability of the lands in view of the provisions of the Act and the incapacity of Santhamma to have conveyed any title to the 4th respondent without any title in herself. The order of the 3rd respondent dated 31.10.1988 which restores possession of the lands to Basppa is an order whose vitality remains unimpeached. Since Basappa is now deceased the respondents shall consider recognition of the petitioner as the legal heir of Basappa or if necessary and warranted, assignment in favour of the petitioner, in recognition of her status as the legal heir of Basappa. The writ petition is allowed as above. There shall be no order as to costs. 13.02.2009 ------------ --------------- pvsn Justice G.Raghuram