THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.16280 OF 2006, 12512 OF 2008 AND CONTEMPT CASE No.776 OF 2008 COMMON ORDER: As these three matters are filed by the same petitioner in relation to land admeasuring Acs.5.00 in survey No.296/5 (new survey No.296/7) of Madhurawada village, Visakhapatnam Rural Mandal (hereafter called, petition schedule land), it is expedient to dispose of them by common order. The parties are referred to by their status in W.P.No.16280 of 2006, which is filed challenging the order of Joint Collector, Visakhapatnam (third respondent) in Rc.No.5780/2003/E1, dated 01.07.2006, whereby and whereunder the order of the Revenue Divisional Officer (RDO) (fourth respondent), dated 20.11.2005 was set aside and the issue of cancellation of assignment to petitioner was remitted to fourth respondent to hear the case afresh after giving notice to petitioner. Contempt case being C.C.No.776 of 2008 is filed alleging disobedience by respondents of the order in W.P.M.P.No.20314 of 2006, dated 18.08.2006 whereunder this Court passed interim order directing that the petitioner shall not be dispossessed if he is in possession as on that date. W.P.No.12512 of 2008 is filed challenging the order of Visakhapatnam Urban Development Authority (VUDA – fifth respondent) in letter in Rc.No.3125/06/PMU, dated 23.12.2006, by which petition schedule land was allotted to M/s.Chaitanya Educational Society (CES – which is arrayed as party respondent No.6 in W.P.No.12512 of 2008) for development of International Standard School at Madhurawada. When interlocutory applications for vacating interim orders passed by this Court are listed, the matters were heard finally with the consent of the parties. The brief fact of the matter is as follows. The petitioner is an ex-serviceman who was discharged from Indian Navy. By being so, he was allotted petition schedule land by ‘D-Form’ patta, dated 01.06.1979. He took possession and cultivated the land. He also obtained pattadar pass book/title deed (PPB/TD). In 1996, petitioner filed W.P.No.8962 of 1996 alleging that there was interference from revenue officials. By an order, dated 24.04.1996 while disposing of the same, this Court directed not to interfere with petitioner’s possession without following the procedure in accordance with law. In 2003, petitioner wanted to dispose of the land. He, therefore, approached the District Collector (second respondent) seeking necessary permission (No Objection Certificate[1]). In connection therewith, Mandal Revenue Officer (MRO) sent a report on 17.02.2004 inter alia stating that on the instructions of District Collector, the land was resumed to Government vide proceedings, dated 23.02.1990 for the reason that assignee failed to cultivate the land within three years as stipulated in the conditions of assignment. The petitioner then filed an appeal before the RDO and also sought interlocutory orders, in vain. He, therefore, filed W.P.No.24889 of 2005. The same was disposed of on 22.11.2005. While ordering status quo with regard to possession, RDO was directed to adjudicate the appeal within four weeks. In the meanwhile, on 20.11.2005, RDO dismissed the appeal, aggrieved by which, petitioner filed a revision before Commissioner of Appeals. When revision before first respondent was pending, alleging that respondents are creating third party rights vis-à-vis petition schedule land, petitioner filed W.P.No.26808 of 2005. The same was disposed of on 15.12.2005 directing respondents not to create third party rights for a period of one week and petitioner was given liberty to approach the first respondent for appropriate orders. On 24.12.2005, first respondent passed orders in the revision petition, directing petitioner to approach Joint Collector, who was ordered to maintain status quo. Questioning the same, petitioner filed W.P.No.3044 of 2006. The same was disposed of on 17.02.2006 giving liberty to petitioner to avail remedy of revision before Joint Collector. This Court also directed to maintain status quo as on that day till disposal of the revision. Petitioner then filed revision before the Joint Collector who, as noticed supra, remanded the matter to RDO. This Court while admitting W.P.No.16280 of 2006 passed interim orders on 18.08.2006 in W.P.M.P.No.30214 of 2006 directing that petitioner shall not be dispossessed if he is in possession as on that day. Thereafter, petitioner filed W.P.No.12512 of 2008 on 16.06.2008. He also filed contempt case being C.C.No.776 of 2008. He contends that the order of allotment to CES is collusive, illegal and arbitrary, when matter is subjudice. The case of respondents 1 to 5 as revealed in counter affidavit filed by Tahsildar is that the land assigned to petitioner was resumed to the Government after following due process of law, that the land was handed over to VUDA on 15.09.1990, that thereafter petitioner entered the land unauthorisedly and that petitioner violated terms and conditions of allotment. It is also alleged that there are no aged trees and the shed was also constructed in 2001-2002. It is also alleged that necessary entries about cancellation of assignment are entered in 10(1) village Adangal. In their counter affidavit filed along with W.V.M.P.No.3371 of 2008, VUDA alleges that Tahsildar handed over possession of petition schedule land as per delivery receipt in Rc.No.1/2005/Spl. R.I, dated 05.12.2005. CES in their counter affidavit in W.P.No.12512 of 2008 alleges that petition schedule land was taken over from former Vizianagaram Estate under Estates Abolition Act 1948, and was classified as assessed waste dry. The same was assigned to petitioner under ‘D-form’ patta but was resumed after following necessary procedure as land was not cultivated. They also allege that VUDA took over the land on 05.12.2005 long prior to interim orders of this Court in W.P.No.16280 of 2006. VUDA by Resolution No.150, dated 18.12.2006 decided to allot the land for International Standard School on Build, Operate and Transfer (BOT) basis for a period of thirty-three years. CES participated in the selection process. VUDA subsequently decided to allot land on outright sale basis and as per the terms, CES paid part of non-refundable project cost of Rs.70 lakhs. Possession of the land was given on 04.02.2008. When CES initiated developmental activities, petitioner approached Court. Learned counsel for petitioner submits that as per the terms of assignment if the land is not cultivated within a period of three years, assignment can be cancelled and land can be resumed. The assignment was made in 1979 and after a period of eleven years, the same cannot be cancelled on such ground. Nextly, he submits that notice served by affixing the same to a stick near the property is not proper notice in the eye of law and based on that, cancellation of assignment is unsustainable. Lastly, he submits that as per Government Orders, the land assigned to an ex- serviceman is encumbered by condition of inalienability only for a period of ten years and after such period, it ceases to be assigned land and therefore, resumption is arbitrary and illegal. Learned counsel relies on A.S.Naidu v Tahsildar Bobbili, Srikakulam[2], Sekhari Aruna Kumari v District Collector, Visakhapatnam[3] and an unreported Judgment of this Court in W.P.No.33276 of 1998, dated 24.03.2006 (Tarra Ramana v the District Collector, Visakhapatnam). Learned Assistant Government Pleader for Revenue (Assignment) submits that when the land was not cultivated in accordance with terms of assignment, Tahsildar has got powers to cancel assignment and resume land at any point of time. According to him, affixing notice to a stick near the land is sufficient compliance of principles of natural justice. As petitioner approached with long delay in filing appeal, RDO dismissed the appeal and for this reason Joint Collector remanded the matter, which does not warrant any interference by this Court. Learned AGP relies on V.Shantha Kumari v District Revenue Officer and Additional District Magistrate[4] and Shaik Bade v District Collector, Visakhapatnam[5]. The order of Joint Collector impugned in first writ petition does not specifically say that the order of RDO, dated 20.11.2005 is set aside. But, in fact, it was done and the matter was remanded for the same authority for fresh disposal. In that view of the matter, it is not proper for this Court to sit as an appellate authority over the order of the Joint Collector and interfere at this stage. When Joint Collector found some illegality or impropriety in the order of RDO and remanded the matter, the scope of judicial review is very limited. A reading of impugned order would show that the revisional authority came to a conclusion that petitioner had no proper opportunity to meet allegation of non-cultivation. When such is the case, nothing prevents petitioner to raise all the grounds which are raised before this Court. If, the matter is interfered with, at this stage, it would deprive departmental officer reconsidering the entire issue. Even according to petitioner, when petitioner requested for NOC from the District Collector to alienate the property, the matter was got enquired into. The Mandal Revenue Inspector and MRO as well as RDO themselves sent reports to the effect that petitioner was in possession and there is a well, watchman shed and various plants like cashewnut, neem, Akeshia, Eucalyptus etc. When departmental officials themselves have sent these reports, there is no cause to doubt that the RDO would ignore them. In that view of the matter, this Court is not inclined to subject the evidence produced by petitioner to a closer scrutiny for adjudicating contentious issues regarding possession and cultivation by petitioner. These issues should be determined by RDO with reference to records of office of Tahsildar and other related documents. Insofar as contempt case is concerned, this Court is convinced that petitioner has not proved. That in contempt breach alleged has to be proved beyond reasonable doubt is law of the land (Chotu Ram v Urvashi Gulati[6] and Anil Ratan Sarkar v Hirak Ghosh[7]). The reasons are as follows. The petitioner filed W.P.No.8962 of 1996, which was disposed of by this Court at admission stage observing that there shall be no interference with the possession and enjoyment of land of petitioner. Thereafter petitioner sought NOC from District Collector for alienating the property. In February, 2004, when land was inspected by Mandal Revenue Inspector and presumably by the MRO, petitioner was stated to be in possession of property. When he was refused NOC on the ground that assignment was already cancelled and land was resumed on 23.02.1990, petitioner filed appeal. At that stage, according to respondents, possession was already taken and handed over to VUDA. Obviously this is incorrect. Along with their application being W.V.M.P.No.3371 of 2008, VUDA has enclosed the Minutes of meeting of empowered committee held on 03.10.2007 in the Chambers of Special Chief Secretary and Chief Commissioner of Land Administration. In the said meeting, permission was accorded to VUDA to sell the land by Government auction. VUDA has also enclosed a delivery receipt, dated 05.12.2005, which shows that land was handed over to Estate Officer of VUDA. If this is taken into consideration, allegation of Tahsildar that the land was resumed in February, 1990 is false. This is one aspect of the matter. Secondly, petitioner filed C.C.No.776 of 2008 on 26.06.2008 alleging that in March, 2008, Sri D.L.N.Raju alleged to be Correspondent of CES and his agents tried to interfere with the possession on the strength of proceedings, dated 23.12.2006. Such an allegation is also made in the affidavit accompanying W.P.No.12512 of 2008. There is no allegation in the affidavit accompany contempt case that there was any interference by Revenue Officials. According to the counter affidavit of CES filed in W.P.M.P.No.16115 of 2008, VUDA passed resolution in December, 2006 to allot the land for International School, and after following necessary tender process, selected CES in December, 2006. They also allege that possession was handed over to them on 23.06.2008. Petitioner has not filed any reply affidavit denying allegation of CES. This only belies the allegation of petitioner that in March, 2008, there was interference by Sri D.L.N.Raju as there was status quo order in the earlier writ petitions, and this Court passed an order in W.P.M.P.No.30214 of 2006 on 18.08.2006, directing not to dispossess petitioner if he is in possession of the land. In the absence of any conclusive evidence beyond reasonable doubt that the orders of this Court have been flouted, contempt jurisdiction cannot be invoked. The contempt case, therefore, deserves to be dismissed. In W.P.No.12512 of 2008, petitioner assails, as noticed supra, letter of Vice Chairman, VUDA awarding the project of development of International Standard School at Madhurawada, to CES. When issues like whether cancellation of assignment of land to petitioner was validly done and whether such cancellation is valid are now to be considered by RDO as directed by Joint Collector, it would not be proper for VUDA to permit any development work on the land much less by CES. Therefore, it would be in the interest of justice to order status quo with regard to possession and development of land by any parties. This Court also observes that VUDA is not precluded from allotting another piece of land to CES, if so advised. In the result, for the above reasons, the W.P.Nos.16280 of 2006 and 12512 of 2008 are disposed of directing RDO, Visakhapatnam, to dispose of the matter after hearing the petitioner and also taking into consideration the inspection reports submitted by Mandal Revenue Inspector and other officials, if any, with regard to possession and cultivation of land and also considering the decisions of this Court referred to hereinabove, relevant for the purpose. This exercise may be completed within a period of eight weeks from the date of receipt of copy of this order. Till then, there shall be status quo with regard to rights, possession and development of land. It is also open to petitioner to produce further evidence, if any, before the RDO in proof of his case. The contempt case is dismissed. There shall, however, be no order as to costs. _______________ (V.V.S.RAO, J) .01.2009 pln [1] As per paragraph 5 of Government Order in G.O.Ms.No.747, Revenue department, dated 30.04.1963, the land assigned to an ex-serviceman is inalienable for a period of ten years and shall be brought under cultivation within a period of three years. In G.O.ms.No.777, Revenue (Assignments-I) Department, dated 11.11.1993, Government reiterated that ex- servicemen are free to sell away their assigned lands after a period of ten years [2] 1977 ALT 542 [3] 2002 (3) ALT 571 [4] 2003 (2) ALT 361 [5] 2005 (5) ALT 635 [6] (2001) 7 SCC 530 : AIR SCW 3208 [7] (2002) 4 SCC 21