IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE ELEVENTH DAY OF AUGUST, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.2373 of 2005 Between: Chirra Bala Kota Reddy. … Petitioner AND The Govt., of A.P., rep., by its Principal Secretary, Revenue Dept., Secretariat, Hyderabad & others. … Respondents Counsel for the petitioner : Sri P. Sridhar Reddy Counsel for the respondents: AGP for Land Acquisition This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.2373 of 2005 ORDER:- This Writ Petition is ﬁled for a Writ of Mandamus to declare the action of the respondents in dispossessing the petitioner from an extent of Ac.1.21 cents of land in Survey No.807-A of Peyyalapalem village, Kodavalur Mandal, Nellore District, for widening Pyderu Drain and the further action of the respondents in not initiating proceedings under the Land Acquisition Act, 1894 (for short “the Act”) and paying compensation to the petitioner, as illegal, arbitrary and unconstitutional. Heard Sri P.Sridhar Reddy, learned counsel for the petitioner, and the learned Assistant Government Pleader for Land Acquisition. In his aﬃdavit the petitioner averred that his father purchased an extent of Ac.7.52 cents of land in Survey Nos.807 and 810 of Gandavaram village, Kodavalur Mandal, Nellore District, under registered sale deed bearing Document No.1198/1920, dated 3-12- 1920; that on the death of his father, the petitioner succeeded to the said property and had been in possession and enjoyment thereof; and that his possession and enjoyment is being recorded in the revenue records, including Adangals. He further averred that the Government acquired an extent of Ac.1.02 cents in Survey No.808/2A, Ac.0-30 cents in Survey No.777/2 and Ac.0.57 cents in Survey No.778/2 belonging to the petitioner and his son, by name, Prabhakar Reddy, for the purpose of Pyderu Major Drain by notiﬁcation dated 8-12-1998; that award was passed on 28-11-2000; and that compensation was paid to the petitioner and his son in accordance with their entitlement. He further averred that in addition to the said property, the petitioner was dispossessed from an extent of Ac.1.21 cents in Survey No.807 for the said purpose, but neither proceedings under the Act were issued, nor compensation was paid. He alleged that there were 200 palmyra trees and one tamarind tree in the said land, apart from standing crop existing on the day when he was dispossessed. He further stated that the Special Tahsildawr (Land Acquisition), Nellore, vide his letter dated 22-1-2000 in RCA No.92/88 addressed to the Executive Engineer, Irrigation Department, requested him to provide necessary funds towards payment of compensation in respect of Ac.13.43 cents, which include the said Ac.1.21 cents of land; that on his making various representations, the Joint Collector, Nellore, personally inspected the land on 27-7-2000 and directed the Special Tahsildar to ﬁx the market value and pay compensation to the petitioner; and that the petitioner, having waited for a long time, caused legal notice dated 15-11-2001 issued through his Advocate to respondents 3 and 4 calling upon them to initiate proceedings under the Act; that the Executive Engineer issued reply dated 26-11-2001, wherein he stated that action would be taken for payment of exgratia after receipt of revised orders from the District Collctor, Nellore; and that respondent No.3 addressed letter dated 27-12-2001 to respondent No.4 requesting him to release the funds for ﬁnalizing the land acquisition proceedings. Since no further action was taken by the respondents, the petitioner ﬁled the present Writ Petition. Separate counter-aﬃdavits have been ﬁled by respondents 3 and 4. In the counter-aﬃdavit ﬁled by respondent No.4, it is, inter alia, stated that the extent of Ac.1.21 cents in Survey No.807/A was found to be a Government assigned land and, therefore, on the directions given by the District Collector, Nellore, the same was excluded from acquisition. It is further averred that, in respect of the said land, D-Form patta was granted in the year 1910 to one Sri Donthi Venkaiah Naidu; that the said land was alienated by the assignee to Sri Chirra Kota Reddy, S/o. Lakshma Reddy; that after his death, the petitioner, who is his son, has come to possession of the same; that a show-cause notice dated 11-11-1998 was issued to the petitioner as to why the said land should not be resumed as it was purchased by his father; that, in response to the said notice, the petitioner gave a statement in writing to the effect that the said land was assigned to Sri Donthi Venkaiah Naidu, which was purchased by his father during the year 1920; and that he has no objection for resumption of the said land if the same is required for public purpose. Respondent No.4 maintained that in view of the same, the land was resumed vide proceedings dated 23-12-1998. On the above premise, they denied the claim of the petitioner for payment of compensation. The counter-aﬃdavit ﬁled by respondent No.3 is also in similar lines and, hence, it need not be specifically adverted to. In the reply aﬃdavit ﬁled by the petitioner, he denied the allegation that the extent of Ac.1.21 cents was assigned in favour of Sri Donthi Venkaiah Naidu, that even if there was any such assignment, the respondents are put to strict proof that there was any prohibition on alienation of the said land; that his enquiries revealed that for the ﬁrst time prohibition of alienation was incorporated in D-Form patta in November, 1929; and that he only requested for payment of compensation in case the land was required by the Government. The petitioner denied any notice of passing of order dated 23-12-1998, under which the land was purportedly resumed. At the hearing, the incharge Tahsildar of Kodavaluru is present with the record. I have carefully gone through the record. The record does not contain the purported DKT patta said to have been granted in favour of Donthi Venkaiah Naidu. Nowhere in the record the land in question is described as an assigned land. The learned Assistant Government Pleader, with the help of the incharge Tahsildar, placed before me Diglot and relied on page No.114 of the said register in which re-Survey No.807-A, admeasuring Ac.2.61 cents is shown as ‘G’ under Column No.4 “Government/Inam”. The learned Assistant Government Pleader fairly stated that except this material, there is no other evidence available in the record to show that the land in question was assigned in the year 1910; and that the father of the petitioner purchased the said assigned land. The fact that the father of the petitioner purchased the said land from Sri Donthi Venkaiah Naidu in the year 1920 under a registered sale deed, is not disputed. Therefore, in the absence of any evidence, whatsoever, to show that this is an assigned land, which was held by Sri Donthi Venkaiah Naidu under a D-Form patta, it is wholly presumptuous for the respondents to proceed on the premise that the land was covered by D-Form patta and that the father of the petitioner purchased the said land. Further, the reason for denying compensation to the petitioner is that since the land is an assigned land, it contains a prohibition on alienation and, hence, the same was resumed. The petitioner, while speciﬁcally denying the stand of the respondents that the land is an assigned land, pleaded that for the ﬁrst time in the year 1929 a condition prohibiting alienation was incorporated in the D-Form pattas and that, therefore, even if the assignment was made in the year 1910 in favour of Sri Donthi Venkaiah Naidu, such patta would not have contained prohibition against alienation. He had also speciﬁcally denied any knowledge of passing of order dated 23-12-1998 purporting to resume the land. At the hearing when the record was perused on 30.06.2008, this Court found that respondent No.4 passed order on 23.12.1988 resuming the land by purporting to invoke condition No.17 and the alleged patta conditions under which the respondents are entitled to resume the land at any time, if the same is required for public purpose without payment of any compensation. When this fact was indicated to the learned counsel for the petitioner, he took adjournment to ﬁle appropriate application for amendment. Accordingly, an amendment application was ﬁled and after the respondents ﬁled a counter-aﬃdavit opposing the said application, the same was allowed by a detailed order passed in WPMP.No.19560 of 2008 on 30.07.2008. In the counter-aﬃdavit ﬁled in the said application, the respondents also dealt with the amendment application on merits as well. Today, the hearing was resumed and after completing the hearing, passing of order is also resumed. In order dated 23.12.1998 passed by respondent No.4, he resumed the land by invoking condition No.17 of the alleged patta. It is an admitted fact that the alleged ‘D’ Form patta said to have been granted in the year 1910 to Sri D. Venkaiah Naidu is not available in the record. It is therefore beyond one’s comprehension as to how respondent No.4 referred to such a condition and on that premise resumed the land. As noted above, the case of the petitioner is that the land was not an assigned land and at any rate even if the same was assigned in the year 1910, the assignments made up to the year 1929 did not contain any condition against alienation. As stated supra, the diglot produced by respondent No.4 showed an extent of Ac.2.61 cents as ‘G’ in column 4 “Government/Inam” and except this there is no evidence to show that the land in question was assigned in the year 1910. Assuming that this was a Government land and assigned in the year 1910, unless the respondents found a condition similar to condition No.17, which is a standard condition contained in the assignments being granted in recent years in the alleged assignments granted in the year 1910, they cannot resume the land without acquiring the same. In my considered view, respondent No.4 had proceeded on the premise that the land is an assigned land without any basis therefor. Admittedly, the land was alienated by the original owner D. Venkaiah Naidu to one Sri Chirra Kota Reddy, who is the father of the petitioner under a registered sale deed dated 03.12.1920. In the absence of any documentary evidence to show that the father of the petitioner purchased the assigned land with the condition of non- alienation, the petitioner cannot be deprived of the land without payment of compensation 73 years after his father purchased the property under a duly registered sale deed. Incidentally, it is required to be mentioned that even assuming that the land was an assigned land and it contained the condition of non-alienation, no steps were taken for cancellation of the assignment. Even in the impugned order, respondent No.4 had merely resumed the land on the ground that the same is needed for the public purpose. In State of A.P. vs Bondapalli Sanyasi Rao and others[1] a Five Judges Bench of this Court held that even in the face of condition No.17, the assignee is entitled to payment of compensation in accordance with the conditions of patta. A Seven Judges Bench in LAO-cum-Revenue Divisional Oﬃcer, Chevella Division, Domalaguda, Hydeabad and others vs. Mekala Pandu and others[2] held that irrespective of whether the land is an assigned land or a private patta, the assignee is entitled to payment of compensation on par with the owner of a patta land under the provisions of the Land Acquisition Act, 1894. However, the Supreme Court suspended the said judgment in a civil appeal. I have mentioned these judgments only to show that even in a case of resumption of assigned land, the assignee is entitled to payment of compensation. But in this case since there is no evidence to show that the land was an assigned land with a condition of non-alienation similar to condition No.17, the petitioner is entitled to compensation as per the provisions of the Act. For the abovementioned reasons, the writ petition is allowed. The respondent is directed to initiate land acquisition proceedings for acquiring the land admeasuring Ac.1.21 cents in Sy.No.807-A1 of Peyyalapalem Village within a period of eight weeks from the date of receipt of a copy of this order and complete the acquisition proceedings within a period of three months thereafter. As a sequel to disposal of the writ petition in the manner indicated above, WPMP.No.3220 of 2005 and WVMP.No.1382 of 2005 are disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 11.08.2008 ES [1] 2002 (2) ALD 1 (LB) [2] 2004 (2) ALD 451 (LB)