IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 1381 of 2005 Between: 1 Kolli Kondala Rao, s/o Atchanna, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 2 Kolli Ramana, W/o Late Ramakrishna, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 3 Kolli Megha Rao, S/o Late Venkata Ramana, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 4 Kolli Rama Rao, S/o Late Venkata Ramana, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 5 Kolli Bhaskara Rao, S/o Late Venkata Ramana, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 6 Kolli Sundara Rao, S/o Late Venkata Ramana, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 7 Kolli Sanyasi Rao, S/o Late Venkata Ramana, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 8 Kolli Mohan Das, S/o Late Venkata Ramana, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. 9 Kolli Appa Rao, s/o Late Ramulu, R/o Mallayyapalem, Mudhurawada (PO), Visakhapatnam. ..... PETITIONERS AND 1 State of Andhra Pradesh, rep. by the Secretary to Government, Municipal Administration and Urban Development Department, A.P. Secretariat, Hyderabad. 2 District Collector, Visakhapatnam District, Visakhapatnam. 3 Visakhapatnam Urban Development Authority, Visakhapatnam, rep. by its Vice-Chairman. 4 A.P. Housing Board, Hyderabad, rep. by its Vice-Chairman & Managing Director. 5 Mandal Revenue Officer, Visakhapatnam Rural Mandal, Visakhapatnam District. .....RESPONDENTS Counsel for the Petitioners:MR.V.L.N.G.K.MURTHY Counsel for Respondent Nos.1, 2 & 5: GP FOR REVENUE Counsel for Respondent No.3: MR. M.RAVINDRANATH REDDY Counsel for Respondent No.4: MR. D.RANGANADH KUMAR The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to declare the action of respondent No.5 in seeking to dispossess the petitioners from the lands covered by patta Nos.761, 762 and 763 admeasuring Acs.4.00, Acs.4.90 cents and Acs.4.90 cents in Survey Nos.127/9, 127/10 and 127/11 respectively of Madhurawada Village as illegal and arbitrary. The petitioners claimed to be the legal heirs of Kolli Atchanna, Kolli Pentaiah and Kolli Ramulu of Madhurawada Village. The case of the petitioners is that the said persons were assigned the above mentioned extents of lands individually on 04.04.1970; that all the three original assignees died and the petitioners being their legal heirs inherited the said assigned lands and are in possession of the same and that at no point of time, either original assignees or the petitioners violated the conditions of assignment or any action was taken for resumption of the lands. It is averred that respondent No.5 went to the said lands and commenced hectic activity of taking measurements, planting boundary stones and levelling the same with proclainers; that the enquiries of the petitioners revealed that the Andhra Pradesh Housing Board and the Visakhapatnam Urban Development Authority started a joint venture of housing development in pursuance of G.O.Rt.No.814, Municipal Administration, dated 30.07.2004 and by G.O.Ms.No.441, Municipal Administration, dated 19.10.2004, the Government of Andhra Pradesh issued instructions to the Commissioners of Municipal Corporations and Municipalities and Vice-Chairmen of Urban Development Authorities to identify the Government lands and other lands in and around the areas falling in their jurisdiction and have the potentiality for undertaking comprehensive programme of housing development and that in pursuance of the said G.Os, respondent No.3 authority addressed communication, dated 23.11.2004 expressing it’s intention to build infrastructure for VAMBAY colony at Madhurawada, while stating that it had identified Government lands to the extent of 7600 acres and that the lands in question were also included in the annexure attached to the said communication. It is further averred that at the request of respondent No.3, respondent No.2 issued directions to respondent No.5 to handover advance possession of lands, which are free from encroachments, assignments and litigation and that respondent No.5 purporting to act on those instructions, planted boundary stones enclosing the petitioners’ lands. Therefore, the petitioners filed the present writ petition. While no counter-affidavit is filed on behalf of respondent Nos.1, 2, 4 and 5, on behalf of respondent No.3, a counter-affidavit was filed wherein it is inter alia mentioned that respondent No.3 formed the joint venture with respondent No.4 in pursuance of G.O.Rt.No.814, dated 30.07.2004; that in accordance with G.O.Ms.No.441, dated 19.10.2004, they have identified the Government lands in and around the areas which have the potentiality to be developed into an integrated township; that the Government issued G.O.Ms.No.1606, Municipal Administration and Urban Development (H2) Department, dated 01.12.2005 wherein it took note of the urgent need to handover vacant Government lands as provided under Section 20 of the Andhra Pradesh Urban Areas (Development) Act, 1975 to Urban Development Authorities to develop the same, capitalize and build revenue base of the Urban Development Authorities so as to enable them to take up major infrastructural development schemes as envisaged under the Master Plan and that in furtherance of the said policy of the Government, the answering respondent identified various extents of lands in Visakhapatnam District including Acs.232.9 of land in Madhurawada Village comprised in Survey No.107 etc., and addressed letter, dated 23.11.2004 to respondent No.2 on 09.12.2004 to issue instructions to respondent No.5 to deliver possession of the said lands to it. It is further averred that till date, respondent No.5 handed over an extent of Acs.94.81 cents of land and another extent of Acs.21.66 cents of land is under process of being handed over. It is also averred that the answering respondent reliably learnt that respondent No.5 cancelled the assignments of the original assignees for violating the conditions of assignment, after following due process of law and subsequently, the possession of the lands was handed over to it. When the writ petition came up for hearing on 16.06.2008, the case was adjourned at the request of the learned Assistant Government Pleader for Revenue (Assignment) to 25.06.2008 to enable him to produce the record. As record was not produced on the said date, the case was again adjourned to 30.06.2008. Even on 30.06.2008, the record was not produced and the learned Assistant Government Pleader reported that some miscreants burnt the record in connection with an agitation. However, Sri M.Ravindranath Reddy, learned counsel for respondent No.3 handed over a copy of the purported para-wise remarks sent in the name of S.Bhaskara Reddy, Mandal Revenue Officer, Visakhapatnam (Rural) to the Government Pleader for Revenue (Assignment), which does not contain any date or signature, wherein it is inter alia stated that the legal heirs of assignees of Atchanna sold away the land admeasuring Acs.4.00 in Survey No.127/9 of Madhurawada Village to one Pilli Satyavathi, Wife of Venkateswara Rao through registered sale deed, dated 23.11.1996 and that since they have no right to transfer the land under the terms and conditions of grant, the transferee of that land cannot acquire any alienable right and the lands in Survey Nos.127/10 and 127/11 are also not in possession of the assignees. It is also stated that in view of the said violation of the conditions of assignment, the assignments were cancelled by following due procedure after issuing show cause notices to the assignees and that as per the directions of the District Collector, the Mandal Revenue Officer handed over all the vacant Government lands to Visakhapatnam Urban Development Authority, Housing Board and Housing Corporation. It is axiomatic that if the assigned lands are sold contrary to the condition of non-alienation, such a sale is hit by the provisions of Section 3 of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short ‘the Act’) and a Full Bench of this Court in Dharma Reddy v. Sub-Collector, Bodhan, Nizamabad District [1] held that any sale of the assigned land made in violation of the conditions of assignment is void and the assigned land is never deemed to have been sold. The Full Bench held that the provisions of the said Act have retrospective operation. But the crucial question arising for consideration in this writ petition is that whether the respondents have initiated action under the provisions of the said Act and cancelled the assignments and resumed the lands as claimed by them. In the absence of filing of counter-affidavit on behalf of respondent Nos.1, 2, 4 and 5 and even going by the contents of the para-wise remarks, which are very vague and do not contain the references and the dates, on which the alleged show cause notices were issued and the cancellation orders were passed, it is not possible for this Court to accept the plea of the respondents that the lands were resumed after cancelling the assignments. The respondents failed to discharge the primary burden placed on them to show that the assignments were cancelled and the lands resumed. Under these circumstances, this Court is left with no option other than holding that the interference by the respondents with the assigned lands is without following due process of law. Ordinarily, in view of the finding given above, the petitioners would have been entitled to restoration of possession. But, in view of the peculiar facts of this case, where the respondents asserted that the lands were resumed after following due procedure and are unable to substantiate the same in view of non-availability of record, which was stated to be destroyed in arson, I deem it appropriate to dispose of the writ petition in the following terms: (1) The respondents shall initiate appropriate action under the provisions of the Act; (2) A fair and reasonable opportunity shall be given to the petitioners and if it is concluded in the enquiry that either the assignees or their legal representatives have not violated the conditions of assignment, either the land shall be restored to the petitioners or appropriate compensation in lieu of possession of the land as provided in law shall be paid to them. (3) If, on the other hand, it is found that the lands were alienated or not cultivated violating the conditions of assignment, it is open to the competent authority to pass an appropriate order of cancellation and resumption of the land to the Government in accordance with law. Respondent Nos.2 and 5 shall complete this process as mentioned supra within a period of eight (8) weeks from the date of receipt of a copy of this order. (4) Pending completion of enquiry and passing of orders, the parties shall maintain status quo with respect to possession of the lands existing as on today. As a sequel to disposal of main petition, WVMP.No.2069 of 2007 is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 7th JULY, 2008. kvni [1] 1987(1) ALT FB 124